UC-NRLF 


B  M  ba^  GOT 


REPORT 


OP 


FRENCH-VENF.ZUELAN  MIXED  CLAIMS 
COMMISSION  OF  1902. 


PREPARED    BY 

JACKSON    H.    RALSTON,      ' 

Late  American  Agent,  Pious  Fund  Case,  before  The  Hague  Permanent 

Court  of  Arbitration,  and  Umpire  of  the  Italian-Venezuelan 

Mixed  Claims  Commission, 

ASSISTED    BY 

W.  T.  SHERMAN    DOYLE, 

Late  Assistant  Agent  of  the  United  States,  American-Venezuelan, 

and  Netherlands'  Agent,  Netherlands-Venezuelan, 

Mixed  Claims  Commissions. 


WASHINGTON: 

GOVERNMENT    PRINTING   OFFICE. 

1906. 


PRESERVATION 
COPY  ADDED 
ORIGINAL  TO  BE 
RETAINED 


NOV  2  3  1992 


to  ^'i'ó 

Banci'jj .  >--.üiai> 


PREFACE. 


This  work  is  a  supplement  to  the  vohime  entitled  "Venezuelan 
Arbitrations  of  1903,"  prepared  by  the  same  editors  and  published 
as  Senate  Document  No.  316,  Fifty-eighth  Congress,  second  session. 
The  protocol,  by  virtue  of  which  the  Commission  acted,  whose  pro- 
ceedings are  reported  herein,  was  dated  February  19,  1902;  but 
the  Commission  sat  at  Caracas  at  the  same  time  with  the  Conunis- 
sions  appointed  under  the  protocols  of  February,  1903,  and,  as  will 
be  observed,  its  work  and  the  questions  submitted  to  it  partook 
largel)^  of  the  same  nature  and  character. 

In  the  preparation  of  this  volume  the  editor  desires  to  present  his 
full  acknowledgment  for  assistance  received  from  ]\Ir.  W.  T.  S.  Doyle; 
]\lr.  W.  B.  Turner,  printing  clerk  of  the  Senate;  Mr.  O.  T.  Cartwright, 
of  the  State  Department;  and  Mr.  C.  J.  Kappler. 

The  opinions  herein  reported  were  kindly  furnished  by  the  Umpire, 
Hon.  Frank  Plumle}";  the  Venezuelan  Commissioner,  Dr.  José  de 
Jesús  Paúl;  and  the  French  Commissioner,  Count  E.  de  Peretti  de  la 
Rocca.     The  headnotes  were  in  all  cases  prepared  by  Mr.  Plumley. 

Jackson  H.  Ralston. 

Washington,  D.  C,  September  25,  1906. 


OOîiTEl^TS. 


Page. 

Table  of  authorities  cited vu 

Table  of  cases  cited xi 

Protocol 1 

Pci-sonnel  of  Commission 4 

Claim  of  heirs  of  Jules  Brun 5 

Opinion  of  Venezuelan  Commissioner G 

Opinion  of  French  Commissioner !) 

Additional  opinion  of  Venezuelan  Commissioner 13 

Additional  opinion  of  French  Commissioner 20 

Opinion  of  Umpire 21 

Claim  of  Frierdich  &  Co 31 

Opinion  of  Venezuelan  Conmiissioner 32 

Opinion  of  French  Commissioner 32 

Additional  opinion  of  Venezuelan  Commissioner 33 

Additional  opinion  of  French  Commissioner 36 

Opinion  of  Umpire 37 

Claim  of  heirs  of  Jean  Maninat 44 

Opinion  of  Venezuelan  Commissioner 45 

Opinion  of  French  Commissioner 50 

Additional  opinion  of  Venezuelan  Commissioner 55 

Additional  opinion  of  French  Commissioner 67 

Opinion  of  Umpire 69 

Claim  of  Antoine  Fabiani 81 

Opinion  of  Venezuelan  Commissioner 81 

Opinion  of  French  Commissioner 83 

Additional  opinion  of  Venezuelan  Commissioner 97 

Additional  opinion  of  French  Commissioner 103 

Opinion  of  Umpire 110 

Exhibit:  Award  of  Swiss  Arbitrator  under  convention  of  1891 147 

Claim  of  Fieri  Dominique  &  Co 185 

Opinion  of  Venezuelan  Commissioner 186 

Opinion  of  French  Commissioner 193 

Additional  opinion  of  Venezuelan  Commissioner 195 

Additional  opinion  of  French  Commissioner 198 

Opinion  of  Umpire 201 

Claim  of  heirs  of  Massiani 211 

Opinion  of  Venezuelan  Commissioner 212 

Opinion  of  French  Commissioner 217 

Additional  opinion  of  Venezuelan  Commissioner 223 

Additional  opinion  of  French  Commissioner 233 

Opinion  of  Umpire 235 

V 


VI  CONTENTS. 

Page. 

Claim  of  Company  General  of  the  Orinoco 244 

Opinion  of  \'en(>zuolan  Commissioner 246 

Opinion  of  French  Commissioner 282 

Addit  ional  opinion  of  Venezuelan  Commissioner 286 

Additional  opinion  of  French  Commissioner 314 

Opinion  of  Umpire 322 

Claim  of  French  Company  of  ^'enezuelan  Railroads 367 

Opinion  of  \'enezuelan  Commissioner 360 

Opinion  of  French  Conmiissioner 405 

Addit  ional  opinion  of  Venezuelan  Commissioner 409 

Additional  opinion  of  French  Commissioner 425 

Opinion  of  Umpire 428 

Summary  of  awards  by  Umpire 453 

Appendix 454 

Leduc,  St .  Ives,  Fischer  &  Co.  case 454 

Kogé  case 454 

Decauville  Company  case 456 

Lalanne  and  Ledour  case 458 

Battistini  case 459 

Piton  case 462 

Summaiy  of  claims  adjudicated  by  the  Commissioners  at  Caracas 464 

Claims  referred  to  the  Umpire 465 

Index 467 


TABLE  or  AUTHORITIES  CITED. 


Annual  of  the  Institute  of  International  Law:  Page. 

Vol.  II,  1878,  pp.  1.50,  151 258 

American  and  English  Encyclopedia  of  Law,  2d  edition: 

Vol.  II,  pp.  610,  671,  672,  699. 445 

Vol.  II,  p.  789 141 

Vol.  II,  pp.  806-807,  n 141 

Vol.  VI,  p.  694 448 

Vol .  VI,  p .  704 449 

Vol.  VI,  p.  713 449 

Vol.  VI,  p.  729,  n 449 

Vol .  VI,  p.  738 449 

Vol.  VI,  p.  741 449 

Vol.  XXII,  p.  1267,  n.  24 42 

Vol.  XXII,  p.  1269,  n.  1  and  3 42 

Vol.  XXII,  pp.  1270-1271,  n.  4 42 

Vol.  XXIV,  pp.  611,  612 448 

Vol.  XXIV,  p.  621 364 

Vol.  XXIV,  p.  775 357 

Vol.  XXIV,  p.  775 358 

Vol .  XXIV,  p.  785 359 

Vol.  XXIV,  p.  791 358 

Best: 

Evidence,  Subsec.  IV,  Title  "Presumption  in  favor  of  validity  of  acts" 42 

Bluntschli: 

Droit  International  Codifié,  sec.  374 74,  224 

Boutwell's  Report: 

Page  83 60 

Page  129 57 

Bouvier,  Law  Dictionary  (Rawle's)  : 

Verb.  Agreement,  vol.  1,  p.  124 74 

Verb.  Cause  of  Action,  vol.  1,  p.  295 359 

Verb.  Construction,  vol.  1,  p.  416 74 

Verb.  Contract,  vol.  1,  p.  429 74 

Verb.  Interpretation,  vol.  1,  p.  1107 — 74 

Calvo: 

Dictionary  of  International  Law,  vol.  2,  sec.  889 295,  297 

Cogordan: 

La  Citoyennité,  39 64 

Dalloz  : 

Jurisprudence  Générale,  vol.  4.     i\jbitration  No.  471,  n 41 

Répertoke  Général,  Instruction  Civile,  No.  83 296 

vu 


vin  TABLE    OF    AUTHORITIES    CITED. 

Page 

Encyclopedia  Pleading  and  Practice: 

Vol.  I,  p.  209 359 

Vol.  \' .  p.  7S() 357 

\ol.  IX,  pp.  G22-<i23 357 

Vol.  IX,  pp.  (324-<)25 357 

Vol.  IX,  p.  ()25,  n 3.55 

Vol.  IX,  pp.  0-2ÍHJ.S() 358 

Vol.  XVIII,  p.  752 364 

Fiorc: 

Nouveau  Droit  International  Pul)lic,  sec.  687 214 

Hale: 

Pleati  of  tlie  Crown,  p.  OS 64 

Hall: 

International  Law,  4th  edition,  p.  232 423 

Haileck: 

International  Law — 

Vol.  2,  p.  41,  par.  14-15 27 

Vol.  2,  p.  55 27 

Vol.  2,  p.  56 27 

Hamilton: 

A  System  of  Legal  Medicine,  Vol.  II,  pp.  29S,  379,  585 77 

Ileffter: 

Internat ional  Law,  p.  74 225 

Lawrence  : 

Page  344 27 

Moore  {see  also  Tal)le  of  Cases  Cited): 

Page  1 249 1 4Ü 

Page  1274 141 

Page  135:3 .58 

Pages  13.5:3-13.54,  n .58 

Page  1408 141 

Pages  16(50-1675 141 

Page  2193 139 

Page  2:388 227 

Page  2.388 .58 

Page  2429 140 

Pages  24.54,  24.56-2461 225 

Page  2.506 227 

Page  2995 26 

Pagi's  :3(KX)-.3001 26 

Pages  4748-491.5 HI 

Oilicial  ( iazette  of  Madrid,  7th  Marcli,  1891 268 

I*ra(licr-F()dí''ré: 

Puhiic  International  Law,  Vol.  \i,  sec.  2612 412 

Revue  dc  Droit  International: 

Vol.  IX,  p.  308 ^ 258 

iStory: 

Conflict  of  Laws,  2d  edition.  Chap.  HI,  .sec.  48 64 

li(|uity  Pleadings,  par.  791 ;i.")7 

Tchcrncir:' 

Protection  des  Nationau.x  K^-sidanl  à  1' Ft  ranger,  p.   170 64 

Twi.ss  : 

Law  of  Nations,  sees.  2:^1  2:52 225 


TABLE    OF    AUTHORITIí:8    CITED.  IX 

Page. 

Vattel: 

Law  of  Nations,  Bk.  2,  chap.  18,  sots.  3207327,  329 : . . .   144,  145 

Venezuelan  Ai-bitrations  of  1Í)Ü3,  Ralston 's  Report  {see  also  Tal)le  of  Cases  Cited): 

Page  74 58 

Page  352 72 

Venezuelan  Civil  Code  : 

Art.  19,  sec.  2,  title  1,  hook  1 224 

Art.  1Í75 418 

Art.  1 178 418 

Alt.  1191 : 419 

Art.  1192 419 

Art.  1 193 419 

Art.  1194 419 

Art.  1196 419 

Art.  1369 237 

Venezuelan  Civil  Code  of  1881  : 

Art.  20 249 

Venezuelan  Code  of  Civil  Procedure: 

Art.  14 298 

Art.  27 • 298 

Art.  89 254 

Art.  109 255,300 

Art.  146 299 

Art.  162 255,300 

Art.  205 257 

Art.  287 254 

Art.  394 299 

Art.  538 259 

Art.  539 292 

Art.  549 259 

Art.  550 259 

Art.  551 .259 

Art.  559 257 

Art.  695 238 

Venezuelan  Fiscal  Code: 

Art.  48 34,41 

Art.  194 ..  35 

Wharton  : 

International  Law  Digest — 

Vol.  II,  sec.  220,  p.  550 146 

Vol.  II,  sec.  220,  p.  558 146 

Vol.  II,  sec.  220,  p.  566 146 

Vol.  II,  sec.  221,  p.  568 146 

Vol.  II,  sec.  224 421 

Vol.  II,  sec.  328,  p.  672 145 

Witthaus  &  Baker: 

Medical  Jurisprudence,  vol.  1,  p.  513 76 

Woolsey: 

Introduction  to  International  Law,  sec.  113 74 


TABLE  or  CASES  CITED. 


Page. 

Alexander  (Moore,  2531) <34 

Angus  (Moore,  2995) 26 

Aroa  Mines  (Ralston's  Rep.,  Von.  I'ii-h.  of  1903,  352  to  355) 72 

Aspinwall  (Moore,  3616) 461 

Bayard  ats.  U.  S.  ex  rel.  Rua,  exrx.  (127  U.  S.,  251  ;  L.  R.  32,  159) 141 

Battistini  (Ralston's  Rep.,  Ven.  Arb.  of  1903,  503) 206 

Beckman  (Ralston's  Rep.,  Ven.  Arb.  of  1903,  598) 206 

Bister  (Moore,  2454) 225 

Blaine  ats.  U.  S.  ex  rel.  Boynton  (U.  S.  Sup.  Ct.  Rep.,  139,  306:  L.  R.  35,  183) 142 

Boui-s  (Moore,  2430) 140 

Brignone  (Ralston's  Rep.,  Ven.  Arb.  of  1903,  710-720) 64,  65,  225 

Brissot  (Moore,  2459-2460) 14,  28 

Brun  (herein,  p.  5). 207 

Cesarino  (Ralston's  Rep.,  Ven.  Aib.  of  1903,  771) 27 

Choctaw  Nation  v.  U.  S.  (119  U.  S.  Sup.  Ct.,  1  ;  L.  R.  30,  306) 144 

Chopin  (Boutwell's  Rep.,  p.  83) 60,  227 

Comegys  et  al.  v.  Vasse  (26  U.  S.,  193;  L.  R.  7,  108) 143 

Cromwell  r.  Sac  County  (4  Otto,  U.S.  Sup.  Ct.,  351-371;  L.C.  P.Co.24,  19.5-204,  n.)       358 

Daniel  (Ralston's  Rep.,  Ven.  Arb.  of  1903,  .507) 462 

Davey  (Ralston's  Rep.,  Ven.  Aib.  of  1903,  410) 206 

De  Lemos  (Ralston's  Rep.,  Ven.  Arb.  of  1903,  303) 27 

Delgado  (Moore,  2196) 139 

Dickelman  ats.  U.  S.  Appt.  (92  U.  S.  Sup.  Ct.  Rep.,  530;  L.  R.  23,  742) 144 

Dix  (Ralston's  Rep.,  Ven.  Arb.  of  1903,  9) 420 

Du  Bois  (Moore,  3712-14) 26 

Fabiani  (Moore,  4748-4915) Ill 

Frelinghuyscn  v.  Key  (110  U.  S.,  63) 143,  144 

Geary  ats.  Union  Bank  (5  Peters,  U.  S.  Sup.  Ct.,  99) ^ 449 

Great  Venezuelan  Railroad  (Ralston's  Rep.,  Ven.  Ai-b.  of  1903,  636) 423 

Hammer  (Moore,  2459-2460) 14,  28,  63 

Heinemann  v.  Rollins  (120  U.  S.  Sup.  Ct.,  605) 42 

HoUenbeck  (Moore,  3716-17) 26 

Houard  (Moore,  2429) 140 

Jaennaud  (Moore,  3000) 26 

Jarrero  (Moore,  2325) 227 

Jeannotat  (Moore,  3673) 26 

Johnson  (Moore,  3032) 18 

Johnston  (Moore,  3673) 27 

Key  ats.  Frelinghuysen  (110  U.  S.,  63) 143, 144 

King  (Moore,  21â3-2196) .' 139 

Knowlton  (Moore,  2193-2196) 139 

Last  Chance  Mining  Co.  v.  Tyler  Mining  Co.  (157  U.  S.  Supt.  Ct.,  683-685;  L.  C.  P. 

Co.  39,  862) , 358 

XI 


XII  TABLE    OF    CASES    CITED. 

Page. 

Lavigno  (yiooro.  2454) 225 

Li>brpt  (Boutwell's  Rep.,  129;  Moore,  2491) 57 

Leggctt  (Moore,  1276  et  seq.) 141 

Lizardi  (Moore,  2483) 57,227 

McLcod  (Moore,  2419). .'. 139 

Maihado  (Moore,  2193) 138 

Maninat  (heroin,  p.  44) 242, 243 

Mathison  (Ralston 's  Rep..  Ven.  Arl).  of  1ÍK)3,  429,  433M38) 64,  74,  225 

Miliani  (Ralston's  Rep.,  Von.  Arh.  of  19()3,  7.>4-7()2) 59, 61, 65.  225 

Moiitijo  (Moore,  1421-1447) 206 

Orinoco  Steamship  Company  (Ralston 's  Rep.,  \'en.  Arb.  of  1903,  74) ,58 

Poggioli  (Ralston's  Rep.,  Ven.  Arb.  of  1903,  847-866) 64, 225, 228 

Puerto  Cabello,  etc.,  Railway  (Ralston's  Rep.,  Ven.  Arb.  of  1903,  455) 424 

Rollins  ats.  Heinemann  (120  U.  S.  Sup.  Ct.,  605) 42 

Sac  County  ats.  Cromwell  (4  Otto  U.  S.  Sup.  Ct.,  351-371  ;  L.  C.  P.  Co.  24, 19.5-204,  n.).       3.58 

Southern  Pacific  R.  Co.  v.  U.  S.  (168  Sup.  Ct.  Rep.,  1;  L.  C.  P.  Co.  42,  377) 3.55 

Stevenson  (Ralston's  Rep.,  Ven.  Arh.  of  1903,  438-455) 60, 64, 72, 225, 242 

Terrj'  (Moore,  2995) 26 

Throckmorton  ats.  U.  S.  (98  U.  S.  Sup.  Ct.  Rep.,  61  ;  L.  R.  25,  93) 1 44 

Turner  (Moore,  3684-.5) 2(j 

Tyler  Mining  Co.  ats.  Last  Chance  Mining  Co.  (157  U.  S.  Sup.  Ct.,  683-685;  L.  C.  P. 

Co.  39,  862) 3.58 

Union  Bank  v.  Geary  (5  Peters,  U.  S.  Sup.  Ct.,  99) 449 

U.  S.  ex  rel.  Boynton  v.  Blaine  (139  U.  S.,  306;  L.  R.  35,  183) 142 

U.  S.  ats.  Choctaw  Nation  (119  U.  S.  Sup.  Ct.,  1  ;  L.  R.  30,  306) 144 

Lf.  S.  Appt.  V.  Dickolman  (92  U.  S.  Sup.  Ct.  Rep.,  .520;  L.  R.  23,  742) 144 

U.  S.  ex  rel.  Rua,  cxrx.  v.  Bayard  (127  U.  S.,  251  ;  L.  R.  32,  159) 141 

U.  S.  ats.  Southern  Pacific  R.  Co.  (168  Sup.  Ct.  Rep.,  1  ;  L.  C.  P.  Co.  42,  377) 3.55 

U.  S.  u.  Throckmorton  (98  U.  S.  Sup.  Ct.  Rep.,  61;  L.  R.  25,93) 144 

U.  S.  ats.  Williams  (1  Howard,  U.  S.  Sup.  Ct.,  290) 42 

Vasse  ats.  Comegj's  et  al.  (26  U.  S.,  193;  L.  R.  7,  108) 143 

Williams  V.  U.  S.  (1  Howard,  U.  S.  Sup.  Ct.,  290) 42 

WuliT  (Moore,  13.53-13.54,  n.) 58, 228 


FRENCH-VENEZUELAN  MIXED  (lAlllS  COMJIISSION  OF  11)01 


PROTOCOL. 


Los  suscritos,  el  Señor  H,  Maii- 
bourguet,  Plenipotenciario  de 
los  Estados  unidos  de  Venezue- 
la, y  el  Señor  Th.  Delcassé,  Dipu- 
tado, Ministro  de  Negocios  Ex- 
tranjeros de  la  República  Fran- 
cesa, debidamente  autorizados 
por  sus  respectivos  Gobiernos, 
han  convenido  en  lo  siguiente  : 

Artículo  I. 

Al  propio  tiempo  que  nombren 
sus  Ministros  en  l-'arís  y  Caracas, 
los  Gobiernos  Venezolano  y 
Francés  designarán  cada  uno  un 
arbitro  y  elegirán  por  tercero  en 
discordia  al  Excelentísimo  Señor 
F.  de  Leon  3'  Castillo,  Marqués 
del  Muni,  Embajador  Extraordi- 
nario y  Plenipotenciario  de  Su 
Majestad  el  Rey  de  España  cerca 
del  Presidente  de  la  Repúl^lica 
Francesa. 

Los  dos  primeros  arbitros  se 
reunirán  en  Caracas  inmediata- 
mente después  de  la  entrega  por 
el  Ministro  de  Francia  al  Presi- 
dente de  los  Estados  Unidos  de 
Venezuela  de  sus  credenciales,  á 
efecto  de  examinar,  de  concierto, 
las  demandas  de  indemnizaciones 
presentadas  por  Franceses,  por 
daños  sufridos  en  Venezuela  con 
motivo  de  los  acontecimientos 
revolucionarios  de  1892.  Las  de- 
mandas de  indenmizaciones  que 
no  pudieren  arreglarse  amigable- 
mente entre  estos  dos  arbitros 
serán  sometidas  por  ellos  al  ter- 
cero en  discordia. 

S.  Doc.  533—59-1 1 


Les  soussignés,  M.  IL  Maubour- 
guet.  Plénipotentiaire  des  Etats- 
Unis  du  \énézuéla,  et  M.  Th. 
Delcassé,  ^Député,  Ministre  des 
Affaires  Fltrangères  de  la  Ré- 
publique Française,  dûment  au- 
torisés par  leurs  Gouvernements 
respectifs,  sont  convenus  de  ce 
qm  suit: 

Article  I. 

En  même  temps  qu'ils  nomme- 
ront leurs  Ministros  à  Paris  et  à 
Caracas,  les  Gouvernements  Véné- 
zuélien et  Français  désigneront 
chacun  un  arl)itre  et  choisiront, 
pour  tiers  arbitre.  Son  Excellence 
M.  F.  de  Leon  y  Castillo,  Marquis 
del  Muni,  Aml)assadeur  Extraor- 
dinaire et  Plénipotentiaire  de  Sa 
Majesté  le  Roi  d'Espagne  près  le 
Président  de  la  République  Fran- 
çaise. 

Les  deux  premiers  arbitres  se 
réuniront  à  Caracas,  aussitôt  après 
la  remise  par  le  Ministre  de  France 
au  Président  des  États-Unis  du 
Venezuela  de  ses  lettres  de  cré- 
ance, à  l'effet  d'examiner,  de  con- 
cert, les  demandes  d'indemnités 
présentées  par  de  Français  pour 
des  donunages  subis  au  Venezuela 
du  fait  d(  s  événements  insurrec- 
tionnels de  1892.  Les  demandes 
d'indemnilésqui  ne  pourraient  être 
réglées  à  l'amiable  entre  ces  deux 
arbitres  seront  soumises  par  eux 
au  tiers  arbitre. 


PROTOCOL. 


Si  no  se  hubiere  estatuido  nada 
définit ivanionte,  va  por  los  dos  ar- 
bitros, ya  por  el  tercero,  dentro 
del  plazo  de  un  año  contado  desde 
la  llefíada  del  arbitro  francés  á 
Caracas,  el  Gobierno  Venezolano 
entrefjará  al  Gobierno  Francés, 
para  distribuirse  por  él  entre  los 
derecli()-]ial)ientes.  un  millón  de 
bolivares  en  deuda  diplomática 
del  S%,  mediante  el  cual  pago 
quedarán  definitivamente  arre- 
gladas todas  las  reclamaciones 
motivadas  por  les  sucesos  revolu- 
cionarios de  1892. 


S'il  na  pas  été  définitivement 
statué,  soit  par  les  deux  arbitres, 
soit  par  le  tiers  arbitre,  dans  un 
délai  d'une  année  à  compter  de 
l'arrivée  de  l'arbitre  français  à 
Caracas,  le  Gouvernement  A'énézu- 
élien  remettra  au  Gouvernement 
français,  pour  être  réparti  par  ses 
soins  entre  les  ayants  droit, un  mil- 
lion de  bolivares  en  dette  diplo- 
matique 3  p.  100,  moyennant  quel 
versement  toutes  les  réclamations 
du  fait  des  événements  insurrec- 
tionnels de  1892  seront  définitive- 
ment réglées. 


Artículo  II. 

Las  demandas  de  indemniza- 
ciones extrañas  á  las  c^ue  son  ob- 
jeto del  artículo  I,  pero  que  estén 
fundadas  en  liechos  anteriores  al  23 
de  mayo  de  1899,  serán  examina- 
das de  concierto  por  el  Ministro 
de  Relaciones  Exteriores  de  Vene- 
zuela y  por  el  Ministro  de  Francia 
en  Caracas.  Si  dentro  de  un 
plazo  d(>  seis  meses,  contado  desde 
la  entrega  de  las  credenciales  del 
Ministro  de  Francia  en  Caracas, 
no  se  ])Usi(Ten  de  acuerdo  sobre  el 
monto  de  las  indemnizaciones  que 
hayan  de  concederse,  las  deman- 
das serán  sometidas  por  ellos  al 
tercero  en  discordia  designado  en 
el  artículo  precedente. 

El  Ministro  de  Relaciones  Exte- 
riores de  Venezuela  y  el  Ministro 
de  Francia  en  Caracas  jxxlrán 
delegar,  cada  uno  en  lo  que  le  con- 
cierna, la  ejecución  de  las  disposi- 
ciones cpie  preceden  en  el  arbitro 
nond)rado  ])or  su  Gobierno. 

Si  varias  demandas  de  indemni- 
zaciones fundadas  en  hechos  dife- 
rentes se  presentaren  j)()rel  mismo 
reclamante  y  una  áv  ellas  estu- 
vien^  en  el  caso  de  someterse  al 
procedimiento  esta])leci(l<)  en  el 
presente  artículo,  las  demás  se 
juntarán  á  ella  j)ara  ser  objeto  de 
de  un  arreglo  único. 


Article  II. 

Les  demandes  d'indemnités  au- 
tres que  celles  qui  sont  visées  à 
l'article  V,  mais  fondées  sur  des 
faits  antérieurs  au  23  mai  1899, 
seront  examinées  de  concert  par 
le  ministre  des  affaires  étrangères 
du  Venezuela  et  par  le  ministre  de 
France  à  Caracas.  Si  dans  le 
délai  de  six  mois  à  dater  de  la 
remise  des  lettres  de  créance  du 
ministre  de  France  à  Caracas,  ils 
ne  tombent  pas  d'accord  sur  le 
montant  des  indemnités  à  allouer, 
les  demandes  seront  soumises  par 
eux  au  tiers  arbitre  désigné  à  l'ar- 
ticle précédent. 


Le  ministre  des  affaires  étran- 
gères du  Venezuela  et  le  ministre 
d(>  Fran('(>  à  Caracas  poiu'ront  dé- 
léguer, chacun  en  ce  qui  le  con- 
ceriu»,  pour  l'exécution  des  dispt)- 
sitions  ci-dessus,  l'arbitre  nonuné 
])ar  leur  gouvernenuMit. 

Si  plusieurs  demandes  d'indem- 
nités, fondéeos  sur  des  faits  diffé- 
rents, sont  j)résentées  ])ar  le  même 
réclamant  et  (¡ne  l'uni»  dent  re  elles 
soit  dans  le  cas  d'être  soumise  à  la 
|)r()cédure  établie  au  présent  arti- 
cle, les  autres  y  seront  jointes, 
pour  faire  l'objet  d'un  règlement 
uniipie. 


PROTOCOL. 


Queda  entendido  que  este  ])!•()- 
cedimiento,como  el  adoptado  para 
las  reclamaciones  de  1892,  no  se 
instituye  sino  á  título  excepcional, 
j  no  invalida  la  convención  del  26 
de  noviembre  de  1885. 

Artículo  III. 

El  tercero  en  discordia  decidirá 
sin  apelación. 

Las  indemnizaciones  se  pajea- 
rán al  Gobierno  Francés  en  títulos 
de  la  deuda  diplomática  del  8% 
dentro  de  los  tres  meses  que  sio^an 
al  acuerdo  ó  al  fallo. 


Artículo)  IV. 


11  est  entendu  que  cette  procé- 
dure, comme  celle  qui  est  adoptée 
pour  les  réclamations  de  1892, 
n'est  instituée  qu'à  titre  excep- 
tionnel et  n'infirme  pas  la  conven- 
tion du  26  novembre  1885. 

Article  III. 

Le  tiers  arbitre  décidera  sans 
appel. 

Les  indemnités  seront  versées 
au  Gouvernement  Français,  en 
titres  de  la  dette  diplomatique  3 
%  dans  les  trois  mois  qui  sui- 
vront l'entente  ou  le  prononcé  de 
la  sentence. 

Article  IV. 


El  Gobierno  Venezolano  pedirá  Le  Gouvernement  Vénézuélien 
al  Congreso  que  inscriba  en  el  demandera  au  Congrès  d'inscrire 
Presupuesto  de  Gastos  las  sumas     au  Budget  des  dépenses  les  sommes 

nécessaires  au  payement  des  men- 
sualités arriérées  de  la  dette  diplo- 


necesarias  para  el  pago  de  las 
mensualidades  atrasadas  de  la 
deuda  diplomática,  y  los  tene- 
dores de  títulos  de  esa  deuda  de- 
berán, por  lo  demás,  participar  de 
todas  las  ventajas  que  resulten 
para  ellos  de  la  estricta  aplicación 
de  las  leyes  venezolanas  orgánicas 
sobre  la  materia. 

El  presente  Arreglo  será  ratifi- 
cado y  las  ratificaciones  se  can- 
jearán en  París  ó  en  Caracas  cuan- 
to antes  se  pueda  v  á  más  tardar 
el  30  de  abril  de  1902. 

En  fé  de  lo  cual,  los  suscritos, 
debidamente  autorizados  por  sus 
Gobiernos  respectivos,  han  ex- 
tendido el  presente  acto  y  puesto 
en  él  sus  sellos. 

Hecho  por  duplicado  en  París 
el  19  de  febrero  de  1902. 

H.  Maubourguet 
Delcassé. 


matique,  les  porteurs  de  titres  de 
cette  dette  devront  d'ailleurs  bé- 
néficier de  tous  les  avantages  qui 
résultent  pour  eux  de  la  stricte 
application  des  lois  vénézuéliennes 
organiques  sur  la  matière. 


Le  présent  Arrangement  sera 
ratifié  et  les  ratifications  en  seront 
échangées  à  Paris  ou  à  Caracas  le 
plus  tôt  que  faire  se  pourra  et  au 
plus  tard  le  30  avril  1902. 

En  foi  de  quoi,  les  soussignés, 
dliment  autorisés  par  leurs  Gou- 
vernements respectifs,  ont  dressé 
le  présent  acte  et  y  ont  apposé 
leurs  cachets. 

Fait  à  Paris,  en  double  exem- 
plaire, le  19  février  1902. 
[l.  s.] 
[l.  s.] 


PERSONNEL  OF  COMMISSION. 


rmpire." — Hon.  Frank  Plumley,  of  Northfichl,  Vt. 
French  Commissioner. — Count  E.  de  Peretti  de  i.a  Rocca. 
Venezuelan  Commissioner. — Dr.  José  de  Jesús  Paúl. 
Secretary  to  Umpire. — Mr.  Charles  A.  Plumley. 
French  Secretary. — M.  Paul  Waltz. 
Venezuelan  Secretary. — Dr.  J.  F.  Padrón  Ustáriz. 


^  By  the  protocol  the  Martiuis  del  Mimi,  aniljassador  oxtraordiiiarv  and  plonipotentiarv  of 
Spain  to  France,  was  appointed,  but,  he  declining,  Hon.  Frank  l^lunilcy  was  iinalh*  selected. 


CLAIM  OF  HEIRS  OF  JULES  BRUN.     No.  I.'» 


HEAD  NOTES. 


A  state  of  war,  a  battle,  or  a  skirmish  excuses  only  those  casualties  which  are  unavoidal)le. 

A  city  not  in  revolt,  but  temporarily  occupied  by  insurf^ent  forces,  is  entitled  to  receive  from 
the  Government  the  ufniost  care  and  protection  not  inconsistent  with  tiie  retaking  of 
the  town  from  the  insurgent  forces,  and  is  subject  only  to  the  inerltahle  contingencies  ' 
attending  such  an  undertaking. 

There  is  a  presumption  that  the  Government  will  do  its  duty  in  this  regard;  but  it  is  met,  if 
not  overcome,  by  a  presumption  which  arises  from  a  refusal  of  the  Government  in  .such 
a  case  to  permit  the  use  of  its  judicial  processes  to  .settle  the  exact  facts  easily  ascer- 
tainable. 

If  there  is  a  claimant  rightfully  in  the  case,  liowever  informally  present,  it  is  sufficient  to 
permit  and  to  rerjuire  a  disposition  of  the  case  on  its  meiits  and  all  parties  will  be  iviWy 
bound  by  tlie  decision. 

Where  the  claimant  is  the  mother,  a  widow,  and  the  claim  is  for  the  unlawful  killing  of  her 
son,  the  measure  of  damages  is  the  amount  which  will  meet  the  pecuniary  loss  she  has 
sustaine<l  where  there  is  no  ground  for  exemplary  damages. 

The  protocol  constituting  this  commission  having  provided  that  the  award  be  paid  in  bonds 
of  the  diplomatic  debt  of  3  per  cent  of  Venezuela,  which  are  at  present  greatly  reduced 
in  market  value,  the  umpire  can  not  because  of  this  augment  the  actual  damage  or  the 
actual  debt  in  making  his  award.  Such  a  cour.sc  would  be  unjust  to  the  respondent 
Government  and  to  every  holder  of  these  debts.  The  umpire  is  not  competent  to  do 
this  under  the  protocol. 

a  EXTRACT   FROM    THK    MINUTES   OF   THE    SITTING    OF   MAY   27,  1903. 

Proceeded  to  examination  of  claim  presented  in  the  name  of  the  heirs  of  Mr.  Brun  (Jules), 
late  superintendent  of  the  French  Company  of  Venezuelan  railroads. 

Doctor  Paúl  observes  that  this  claim  is  not  presented  by  a  representative  of  Mr.  Brun  and 
in  his  opinion  this  fact  would  suffice  for  its  not  being  taken  into  consideration  by  the  com- 
mission. He  adds,  besides,  that  the  death  of  Mr.  Brun  was  caused  by  pun^ly  accidental 
means  and  that  in  no  manner  can  it  serve  as  a  basis  for  a  claim  of  indemnity  against  the 
Venezuelan  Government. 

Mr.  de  Peretti  replies  that  in  presenting  this  claim  the  Frencli  Government  is  sulistituted 
in  place  of  the  heirs  whose  interests  it  takes  in  hand,  tiie  mother  of  Mr.  Brim  lu'iiig  aged 
and  infirm. 

Moreover,  the  responsibility  of  the  Venezuelan  Government  appearing  to  iiim  well  estab- 
lished he  accords  an  indemnity  of  500,000  bolivars. 

It  is  therefore  decided  that  this  claim  be  reserved  for  the  umpire  to  examine. 

Doctor  Paúl  iiKjuires  of  his  colleague  upon  what  basis  he  has  estimated  the  amount  of 
the  indemnity  which  he  thinks  is  due  the  heirs  of  Mr.  Brun.  Mr.  de  Peretti  replies  that  in  view 
of  the  rejection  by  his  colleague  of  the  present  claim  he  does  not  feel  obliged  to  disclose  the 
reasons  which  have  led  him  to  fix  the  amount  of  .^(M),(MX)  bolivars.  However,  he  is  willing 
to  state  that  this  amount,  which  is  exactly  estimated  by  the  French  Companj'  of  Venezuelan 
railroads  as  an  equitable  compen.sation  for  the  injury  done  to  the  family  of  its  superintend- 
ent, represents  almost  precisely  in  capital  the  annual  salary  that  Mr.  Brun  earned  by  his 
labors. 

5 


6  TASE    OF    HKIRS    OF    JULES    BKUN. 

OPINION   OF  THE  VENEZUELAN  COMMISSIONER. 

This  claim  is  wanting  every  document  proceeding  from  the  lawful 
heirs  or  successors  to  Jules  Brun  formuLiting  a  claim  against  the  Gov- 
ernment of  Venezuela  for  the  death  of  s.;id  gentleman,  so  that  all  such 
elements  are  lacking  as  are  intlispensahle  for  taking  into  considera- 
tion either  the  lawfulness  of  the  personality  of  the  claimant  ortiie 
sum  to  which  the  claim  is  made  to  amount. 

Among  the  papers  presented  hy  the  French  arbitrator  there  only 
appears  a  telegram  dated  the  4th  of  June,  1.898,  addressed  l)y  Mr. 
Hanotaux  to  the  French  legation  in  Caracas  running  as  follows: 

Take  steps  necessan-  to  protect  eventual  riglit-s  of  the  Brun  family,  assuring  guarantee  of 
the  French  personnel  of  the  compan\'. 

There  are  also  presented  two  rough  copies  of  writing  corresponding 
to  two  notes  addressed  to  the  minister  of  foreign  affairs  of  Vene/Aiela 
on  the  4th  and  12th  of  June,  1S98,  by  Mr.  Quiévreux,  inviting  liim  to 
ask  the  local  authorities  of  the  State  of  Zulia  to  tender  their  assistance 
to  the  officials  of  the  ''Compagnie  Françi.ise  de  Chemins  de  Fer 
Vénézuéliens,"  with  the  purpose  of  establishing  the  exact  truth  of  the 
events  that  took  place  at  Santa  Barbara  on  the  day  Mr.  Brun  was 
wounded. 

In  reply  to  one  of  these  notes  the  minister  of  foreign  affairs  on  the 
11th  of  June  of  the  same  year  expressed  himself  to  be  walling  to  take 
it  into  consideration,  foreseeing  that  the  fact  of  his  not  considering  it 
might  lend  itself  to  interpretations  alien  from  the  views  of  the  Gov- 
ernment as  to  the  death  of  a  trul}'  appreciated  person,  which  had  had 
its  origin  in  a  regrettable  accident  during  the  progress  of  battle. 

The  fact  of  the  wound  of  Mr.  Brim,  with  which  the  communications 
of  the  consul  of  France  deal,  occurred  under  circumstances  of  such  a 
nature  so  precise,  so  evident,  and  so  indisputabh^  accidental  that  all 
investigation  after  the  death  of  the  wounded  gentleman  became  uimec- 
essary.  The  verj'  emplo^^ees  of  the  company,  personal  witnesses  of  the 
fact,  narrate  with  all  its  details  the  unfortunate  accident  of  the  wound 
of  Mr.  Brun,  and  the  commissioner  for  the  Government  of  Venezuela 
will  take  precisely  those  declarations  into  consideration  to  w(>igh  tlie 
reason  and  justice  of  the  alleged  claim. 

Mr.  J.  B.  Peysselon,  representative  of  the  "  Compagnie  Française  de 
Chemins  de  Fer  Vénézuéliens,"  after  the  death  of  Mr.  Brun,  in  a  state- 
ment which  he  ratified  before  the  considar  agent  of  France  at  Mara- 
caibo,  relates  the  facts  as  follows: 

From  the  4th  day  of  May  the  village  of  Santa  Bárbara,  the  place  of  our  ri'sidenco,  was 
occupied  by  a  revolutionary  troop.  On  Sunday,  the  Kth,  the  legal  troops,  transported  by 
the  steamer  Progreso,  arrived  at  midday  at  the  village.  Under  tliese  circuiustaiues  we  must 
foresee  a  battle  in  the  streets.  This  foresiglit  ordered  us  to  immediately  close  all  the  doors 
and  blinds  of  our  dwelling  house.  While  I  was  closing  a  window  overlooking  the  s(|uare 
.Mr.  Bnin  w«.s  closing  (hat  of  his  sleeping  room,  which  overlooks  Sunto  Domingo  street. 


OPINION    OF    VENEZUELAN    COMMISSIONER.  7 

At  the  same  moment  the  musket  volleys  began  in  this  street;  the  window  was  already  closed; 
but  Mr.  Brun  had  no  time  to  remove  his  hand  from  the  lock  when  the  bullet  of  an  arm  of 
precision  pierced  the  blind  through,  twisted  the  lock  in  an  extraordinary  way,  pierced  Mr. 
Brun's  hand  through  and  through  and  threw  the  chips  on  his  breast.  Mr.  and  Mrs.  Crinière, 
who  inhabit  the  house  of  the  director,  attended  Mr.  Brun  on  this  sad  circumstance.  I 
immediately  went  out  to  the  square  to  call  a  physician.  I  met  with  20  armed  men  of  the 
Government,  and  tiie  only  person  known  to  me  to  whom  I  could  apply  was  Gen.  Eleazar 
Montiel,  the  head  of  the  party.  As  the  physician  had  not  arrived,  I  went  out  for  a  second 
time  and  saw  the  same  Montiel  with  Messrs.  Bellais  and  Acosta,  his  lieutenants,  and  another 
troop  of  the  Government.  When  the  first  panic  was  over,  Drs.  J.  Rosales  and  J.  Cohen 
could  be  called,  and  immediately  came  to  attend  our  friend. 

Mr.  A.  Crinière,  bookkeeper  of  the  company  at  Santa  Bárbara, 
declares  before  the  same  consular  agent  : 

We  were  anxious,  because  we  heard  and  saw  nothing.  When  at  midday  the  report  cir- 
culated that  the  steamer  Progreso  was  at  the  entrance  of  Santa  Bárbara,  a  great  movement 
took  place,  and  we  saw  a  white  flag  at  the  station.  This  inspired  us  with  some  confidence, 
and  we  thought  that  the  two  parties  would  come  to  an  understanding.  Unfortunately  it 
did  not  happen  so,  and  at  the  same  time  a  lively  musket  firing  broke  out  in  Santo 
Domingo  street.  It  was  the  soldiers  from  Maracaibo  that  arrived  at  the  bottom  of  the  vil- 
lage and  attacked  the  forces  of  Generals  Figuera  and  Pozo  in  the  rear.  Immediately  Messrs. 
Brun,  Peysselon,  and  myself  ran  to  close  the  doors  and  windows  to  protect  ourselves  from 
the  bullets.  1  had  already  heard  the  noise  of  something  like  mortar  falling  behind  me. 
It  was  a  bullet  that  had  pierced  through  the  window  of  the  hall  overlooking  the  square 
which  had  two  flags.  Almost  at  the  same  time  I  heard  Mr.  Brun  cry,  "I  am  wounded." 
We  all  ran  to  him  to  help  him  and  saw  his  right  hand  horribly  mutilated  by  a  bullet.  All  of 
this  passed  like  a  thunderbolt.  We  rendered  the  first  attentions  required  bj'  so  serious  a 
wound,  and,  the  musket  firing  having  ceased,  Mr.  Peysselon  ran  in  search  of  a  physician.  I 
followed  him  and  saw  soldiers  of  the  legal  forces  with  the  French  flag  over  their  heads  guard- 
ing the  entrance  of  the  office  in  the  street,  which  did  not  prevent  them  from  preparing 
to  fire  at  us;  but  fortunately  Mr.  Peysselon  had  sufficient  presence  of  mind  to  cr}':  "French 
company,"  which  produced  the  effect  of  changing  theii:  bad  intention,  and  Mr.  Peysselon 
was  able  to  go  out. 

From  the  medical  inspection  made  b}'^  Dr.  J.  Cohen  and  reported  to 
the  consular  agent  at  Maracaibo,  it  appears  that  Mr.  Brun,  immedi- 
ately after  the  incident,  presented  a  wound  in  his  right  hand,  with  the 
following  circumstances:  On  the  p:Jm  side  of  the  hand  the  wound  pre- 
sented an  extent  of  from  7  to  8  centimeters  and  a  strange  appearance 
that  showed  that  it  had  been  produced  not  only  by  the  bullet,  but  also 
by  the  violent  pressure  of  a  hard  body,  with  hr.lf-cutting  edges,  which 
intersected  the  skin,  the  muscles,  and  the  arteri¿>l  arc.  It  also  appears 
that  the  physician,  in  view  of  the  dangerous  nature  of  the  wound,  pro- 
ceded  to  render  the  patient,  in  company  with  Dr.  Paminas  Rosales, 
all  such  attention  as  medical  science  prescribed;  that  these  cares  con- 
tinued during  all  the  days  9, 10, 11,  and  12,  in  which  nothing  particular 
occurred,  the  treatments  being  made  reguLirly  and  with  a  great  atten- 
tion; that  on  the  12th,  at  11  a.  m.,  Mr.  Brun  was  embarked  on  board 
the  steamer  Progreso  for  his  transportation  to  Maracaibo  without 
showing  theretofore  any  alteration;  that  at  4  o'clock  that  day  Doctor 
Cohen  proceeded,  on  board  the  Progreso,  to  dress  the  womid,  and 


8  CASE  OF  HKIRS  OF  JÜLE.S  BKUN. 

found  in  tlie  purulent  focus  formed  at  the  side  of  the  wound  on  the 
dorsal  face  of  the  hand  a  complete  absence  of  orleet  and  three  g:angre- 
nous  points  on  the  dorsul  face  of  the  thumb;  that  such  symptoms 
insi)ired  him  with  the  fear  of  a  great  danger,  for  which  reason  he  noti- 
fied the  acting  representative  of  the  rights  of  the  company  what  he 
had  seen  and  ordered  a  certain  preventive  method.  The  patient  was 
well  until  7,  when  in  a  violent  manner  the  fever  made  its  invasion 
with  a  strong  delirium  and  all  the  consequences  attending  an  infec- 
tion; that  everytliing  was  attempted,  but  in  vain,  for  neither 
scientific  cares  nor  those  of  friendsliip  were  enough  to  avoid  the 
catastrophe  that  took  place  at  8.45,  when  the  patient  died  of  a  puru- 
lent infection  of  violent  invasion,  which  could  not  be  overcome. 

The  corpse  having  been  carried  to  Maracaibo  on  the  s.ime  steamer 
Progreso,  the  government  of  the  State  of  Zulia,  upon  learning  the 
regrettable  event,  thought  it  to  be  its  duty  to  join,  as  it  did  in  effect, 
in  the  sorrow  produced  in  the  State  by  the  death  of  Mr.  Brun,  and 
decided  among  other  manifestations  to  assist  at  the  act  of  the  burial 
of  the  corpse  of  the  esteemable  gentleman,  who  lost  his  life  on  account 
of  a  lamentable  accident. 

iVnother  proof  given  by  the  government  of  the  sympathy  with 
wliich  it  was  inspired  by  the  fate  of  Mr.  Brun  appears  from  a  note 
addressed  by  Gen.  J.  M.  Gomez,  chief  of  the  tliird  military  circum- 
scription of  the  Republic  to  Mr.  Julio  d'Emp:-ire,  in  charge  of  the  con- 
sular agency  of  France  in  the  city  of  Maracaibo. 

In  that  note  a  cop}^  is  inclosed  of  that  wliich  in  the  name  of  Mr. 
Brun,  while  suffering  in  his  bed  the  consecjuence  of  his  wound,  was 
addressed  on  the  I'ith  of  May,  1898,  by  Mr.  J.  B.  Peysselon,  mspector 
of  the  exploitation,  to  Gen.  Mamerto  D.  Gonzalez,  military  agent  of 
Gen.  Garcia  Gomez  in  the  Santa  Bárbara  district.  Mr.  Peysselon's 
note  runs  thus  : 

Compagnie  Française  de  Chemins  de  Fer  Vénézuéliens.  Line  from  San  Carlos  to  Mérida. 
Direction  of  the  e.xploitation.  L.  R.  No.  658.  Santa  Barbara,  12th  May,  1898.  General 
Mamerto  D.  González.  My  dear  sir:  As  the  agent  of  the  company,  and  Mr.  Brun  being 
unable  to  do  so  himself,  I  thank  you  for  the  restoration  of  order  and  for  having  taken 
the  proper  measures  for  the  bringing  of  the  steamer  Santa  Bárbara.  It  would  be  liiglily 
agreeable  to  us  to  sec  you  among  us  protecting  our  persons  and  our  interests.  I  am  with 
all  consideration. 

Your  respectful  servant,  J.  B.  Pkysselo.n, 

Inspector  of  the  Exploitation. 

This  note,  unoer  t.ne  circumstances  under  which  it  was  written,  Mr. 
Brun  being  airead}'  wouiuh'd,  order  being  restored  in  th(>  place  by  the 
forces  commanded  by  Gen.  Mamerto  González,  ami  the  steamer  Santa 
Bárbara,  that  had  been  t;.ken  by  the  revolution.. ries,  being  retiu'ned  to 
the  company,  throws  suihcient  light  to  make  one  consider  as 
ungrounded  the  attacks  wliich  Mr,  Peysselon  desired  to  adduce  with 
the  purpose,  after  the  (le:'lli  of  Mr.  Brun,  of  giving  the  nccidenl  lia])- 


OPINION    OF    B'KENCH    COMMISSIONER.  9 

pening  to  the  latter  a  character  of  r.ggressioii  against  the  building  of 
the  company,  tha,t  is  not  in  any  way  proved. 

For  iJl  the  reasons  above  stated  the  cl;;ini  presented  by  the  Com- 
missioner of  France  on  account  of  the  death  of  Mr.  J.  Brun  is  desti- 
tute of  any  ground  that  may  render  it  acceptable  for  any  amount, 
and  the  Commissioner  for  Venezuela,  therefore,  entirely  rejects  it. 

Caracas,  May  27,  1903. 


OPINION  OF  THE  FRENCH  COMMISSIONER. 

The  8th  of  Ma}^,  1898,  M.  Brun,  superintendent  of  bridges  and 
causeways  on  leave,  director  of  the  French  company  of  Venezuelan 
railroads  was  grievously  wounded  by  a  discharge  from  Government 
troops  which  took  place  in  the  village  of  Santa  Barbara  occupied  by 
the  insurgent  forces.  M.  Brun,  who  was  in  his  house,  over  which  floated 
the  French  flag,  had  his  hand  shattered  b}'  a  ball,  at  the  moment  when 
he  was  closing  the  shutters  of  the  window  of  his  room,  and  died  four 
days  later  because  of  this  wound.  These  facts  have  caused  the  lodg- 
ment by  the  French  Government  of  the  claim  of  500,000  bolivars 
before  the  mixed  commission  appointed  according  to  the  protocol  of 
the  19th  of  February,  1902.  These  facts  are  well  established  by  the 
depositions  of  eyewitnesses  and  of  the  doctor  who  cared  for  ^L  Brim. 
The  Venezuelan  authorities  have  by  their  attitude  confirmed  their 
correctness,  which  the  Venezuelan  Government  has  never  placed  in 
doubt.  At  the  sitting  of  the  27th  of  May,  1903,  the  mixed  commis- 
sion considered  tliis  claim. 

Dr.  Paúl  rejected  it,  considering  that  it  had  not  been  presented  by 
a  representative  of  M.  Brun  and  that  this  fact  suffices  for  its  not 
being  taken  into  consideration  at  all  by  the  commission;  that  the 
death  of  M,  Brun  had  a  cause  purely  accidental,  and  that  it  could 
not  in  any  way  serve  as  a  basis  for  a  demand  of  indemnity  from  the 
Venezuelan  Government.  I  replied  that  the  French  Government 
had  substituted  itself  for  the  presentation  of  this  claim  by  the  heirs 
whose  interests  it  had  taken  in  hand,  the  mother  of  M.  Brun  being 
aged  and  infirm,  and  that  besides  the  responsibility  of  the  Venezuelan 
Government  seeming  to  me  established  I  accorded  a  demand  and 
indemnity  in  satisfaction  of  500,000  bolivars. 

It  is  said  nowhere  in  the  protocol  that  the  claims  must  be  presented 
by  those  having  a  right  in  themselves.  It  is  at  the  same  time  con- 
formable to  international  law  and  commanded  l)y  good  sense  and 
equit}^  that  the  French  Government  present  in  its  name  the  claims 
of  those  of  its  dependents  who  are  not  capable  themselves  of  defend- 
ing their  rights,  and  nothing  interferes  with  this.  As  for  the  respon- 
sibility of  the  Venezuelan  Government,  it  is  difficult  to  place  it  in 


10  CASE  OF  hî:iks  of  jcjles  brtin. 

doubt,  even  lioldinfj;  to  the  principles  orenerally  admitted  by  inter- 
national European  law,  the  existence  of  which  are  o.'ten  disregarded 
in  affairs  between  the  countries  of  Europe  and  certain  South  Amer- 
ican republics,  because  of  the  social  and  political  conditions  of  these 
countries. 

Immediately  after  the  decease  of  M.  Brun  M.  Ilanotaux,  minister  of 
foreign  affairs,  telegraphed  the  4th  ol  June,  189S,  to  M.  Quievreux, 
chargé  d'affaires  of  France  at  Caracas,  to  take  the  necessary  steps  to 
safeguard  the  eventual  rights  of  the  family.  M.  Quievreux  the  same 
day  wrote  to  the  minister  of  foreign  relations  of  Venezuela,  rendering 
homage  to  the  correctness  of  the  attitude  of  the  high  authorities  at 
Maracaibo,  whose  evidences  of  sympathy  were  an  undeniable  proof 
of  the  confidence  which  M.  Brun  had  inspired  and  of  the  services  wliich 
he  had  rendered  to  the  country  in  directing  a  great  enterprise  of  pub- 
lic utility.  Quievreux  made  known  that  the  local  officials  had  not  con- 
ducted themselves  so  well.  The  succes.sor  of  M.  Brun  in  the  direction 
of  the  company  could  not  obtain  from  the  judge  of  the  district  per- 
mission to  proceed  according  to  the  legal  forms  to  make  the  different 
proofs  relating  to  this  dreadTul  incident  and  to  the  circumstances 
accompanying   it. 

The  house  of  M.  Brun,  property'  of  the  company,  was  connected 
with  the  shops  and  storehouse  for  material  and  the  central  office. 
But  the  doors  of  the  principal  shop  o"  the  office  of  bookkeeping  and 
the  telegraph  office  were  broken  down  a^ter  one  of  the  discharges 
fired  upon  the  property  oí  the  companj-  had  wounded  M.  Brun. 

In  conclusion  M.  Quievreux  asked  relief  from  the  Federal  Govern- 
ment and  that  they  kindly  invite  the  local  officers  to  lend  their  indis- 
pensable assistance  to  an  investigation  of  this  nature  by  the  agents 
of  the  French  company. 

In  his  reply  the  minister  for  foreign  affairs  tried  to  establish  theo- 
retically that  the  judicial  authorities  were  not  obliged  to  proceed  to 
any  investigation.  He  added  that  the  death  of  M.  Brun  and  the 
breaking  of  the  doors  were  simply  accidents  of  war.  The  death  of 
M.  Brun  could  no  more  require  compensation  than  that  of  a  Vene- 
zuelan who,  crossing  a  street  in  Paris  in  1871 .  during  the  struggles  of 
the  Commune,  was  killed  by  a  stray  ball. 

The  representative  ot  France  in  his  repl}^  called  attention  to  such 
strange  theory,  as  it  seemed  to  him.  lie  suggestively  remarked  that 
the  terms  of  the  letter  of  the  minister  had  oidy  strengthened  his  ])ur- 
pose  to  have  an  examination  of  the  unfortunate  incidents  which  had 
marked  the  taking  of  Santa  Barbara  by  the  troops  of  the  Govern- 
ment. It  was  inadmissible,  he  added,  that  the  department  of  foreign 
relations  should  try,  under  cover  of  the  authorities  of  international 
law,  to  liken  the  breaking  of  the  doors  of  the  buildings  of  the  French 
company  to  the  destruction  of  the  hostile  intrenchments,  which  would 


OPINION    OF    FRENCH    COMMISSIONER.  11 

lead  one  to  suppose  that  the  aforesaid  buildings  over  which  floated  the 
French  flag  were  occupied  by  revolutionary  forces,  but  this  hypothesis 
was  so  contrary  to  the  real  fact  that  the  Venezuelan  Government  itself 
has  not  thought  to  claim  it.  M.  Quiévreux  said  at  the  end  of  his 
letter — 

I  regret  that  it  docs  not  seem  possible  to  your  excellency  that  the  judicial  autliorities 
of  the  district  in  which  Santa  Barbara  is  situated  should  lend  to  the  officials  of  the  French 
company  of  Venezuelan  railroads  their  aid  in  view  of  establishing  the  exact  truth  about 
the  events  which  the  national  Government  deplores  with  me.  I  see  myself  obliged,  there- 
fore, to  make  all  my  reserves  fo  •  the  case  where  the  interested  party  having  to  formulate 
a  precise  claim  upon  the  subject  of  this  affair  it  would  not  be  possible  for  them  to  base  it 
upon  tlie  statements  made  according  to  the  usual  and  legal  forms.  This  will  not  be  in 
accordance  with  their  will  or  mine. 

In  spite  of  this  courteous  admonition  the  Venezuelan  Government 
persists  in  its  resolutions.  This  attitude  proves  clearly  that  it  feared 
the  consequences  of  a  legal  investigation  and  that  it  was  ready  to 
intrench  behind  technicalities  more  or  less  contestable  upon  expla- 
nations upon  international  law  and  upon  comparisons  not  well  justi- 
fied. We  are  convinced  besides  that  this  eagerness  to  defend  itself 
by  the  aid  of  citations  of  authorities  of  international  law  even  before 
having  been  attacked,  to  reject  a  claim  which  was  not  yet  presented, 
shows  clearly  that  the  Venezuelan  Government  itself  confessed  that  a 
compensation  for  damages  might  be  demanded  of  it  under  a  just  title. 
If  it  had  been  assured  that  an  investigation  conducted  conformably 
to  Venezuelan  laws  by  the  Venezuelan  officials  would  have  simply  per- 
mitted to  conclude  upon  the  irresponsibility  of  the  Government  for 
the  accident  of  the  war  no  doubt  but  that  it  would  have  proceeded 
immediately  to  the  aforementioned  investigation.  That  would  have 
established  the  responsibilities.  That  is  what  the  Venezuelan  Govern- 
ment wished  to  avoid.  It  has  not  recoiled  before  a  denial  of  justice 
and  it  has  thus  condemned  itself. 

In  the  several  trips  I  have  made  to  Santa  Barbara  for  the  purpose  of 
forming  personal  opinions  upon  the  French  claims  I  have  been  able, 
although  five  years  have  passed  since  the  events,  to  make  some  obser- 
vations which  have  terminated  by  convincing  me  that  the  wounding 
of  ^I.  Brun  could  not  be  regarded  as  a  simple  accident  of  war.  Accom- 
panied by  the  commander  of  the  French  cruiser  Jouffroy,  by  a  repre- 
sentative of  the  French  company,  by  the  civil  head  of  Santa  Barbara, 
and  by  some  prominent  men  of  the  place,  I  visited  the  house  where  M. 
Brun  was  wounded.  The  window  of  the  room  situated  on  the  first  floor 
where  this  accident  took  place  is  pierced  by  several  balls,  the  traces  of 
which  one  sees  clearly  on  the  shutters  of  smooth  wood  and  on  the 
walls  back  of  the  chamber.  Stray  balls  do  not  converge  thus  on  a 
precise  point.  It  is  certainly  a  question  of  a  volley  fired  intentionally 
upon  a  window^  which  had  just  been  closed  and  above  which  floated 
the  French  flasr.     According  to  the  declarations  wliich  have  been 


12  CASK    OF    HKIKS    OF    .IFLKS    HKLX. 

made  to  me  by  the  civil  chief  and  by  the  notables  who  were  at  vSanta 
Bárbara  wlien  the  village  was  taken,  the  troops  which  fired  came  by  a 
street  perpendicular  to  the  side  of  the  house  where  the  window  of  M. 
Brun  was  located.  There  were  neither  in  the  street  nor  in  the  house 
any  insurgents,  the  presence  of  whom  could  have  ex])lained  the  shots, 
and  the  armed  band  was  commanded  by  an  officer,  Mr.  Montiel,  and 
compo.sed  of  soldiers  who  know  the  house  of  M.  Brun  and  M.  Brun 
himself  very  well.  The  tone  with  which  these  declarations  were  made 
lead  me  to  believe  that  the  aggressors  knew  what  they  were  doing  and 
were  led  by  a  chief  who  profited  from  an  occasion  oifored  to  satisfy  a 
former  grudge.  The  investigation  asked  for  and  refused  under  the 
conditions,  which  I  have  explained,  would  at  least  have  permitted 
the  Government  of  Venezuela  to  punish  those  who  thus  fixed  its 
responsibility.  These  necessary  explanations  tend  to  transform  the 
simple  accident  of  war  which  the  Venezuelan  Govermnent  would  like 
to  content  itself  with  deploring  into  a  murder  connnitted  knowingly, 
perhaps  premeditated,  and  in  any  case  accompanied  })y  acts  of  vio- 
lence upon  foreign  property  without  any  provocation  or  any  resist- 
ance being  i\h]o  to  excuse  or  even  explain  them.  Can  one  equitably 
establish  a  parallel  between  a  like  instance  and  the  fortuitous  death 
of  a  Venezuelan  who,  in  1871,  was  hit  by  a  stray  ball  while  crossing  a 
street  during  a  com})at  going  on  between  the  insurgents  and  the  army 
of  Versailles?  M.  Brun,  director  of  a  public  service,  who  was  obliged 
to  remain  at  his  post,  has  been  wounded  in  his  house  siu'niounted  by  a 
PVench  flag  by  a  volley  intentionally  aimed  at  his  window  by  a  ])arty 
of  regular  soldiers  who  knew  him  without  one's  being  able  to  find  in  it 
any  excuse  or  provocation.  The  same  soldiers  then  broke  down  the 
doors  of  the  buildings  which  they  invaded  and  can  not  give  as  an 
excuse  for  this  violation  of  foreign  property  the  necessity  of  driving 
insurgents  from  it  and  of  making  them  cease  their  resistance. 

The  nature  of  the  acts,  the  conduct  of  the  local  authorities,  the 
attitude  of  the  Wnezuelan  Government,  and  the  result  of  a  personal 
investigation  have  led  me  to  judge  that  an  indenuiity  was  due  the 
family  of  the  victim.  I  have  placed  it  at  ô()(),()0()  bolivars,  judging  as 
an  arbitrator  who  acts  according  to  his  conscience  without  allowing 
himself  to  be  influenced  by  the  (piality  of  the  parties  which  he  liasno 
mission  either  to  attack  or  defend.  T  have  estimated,  and  still  esti- 
mate, after  having  heard  my  honorahl(>  colleague  exi)ress  his  o|)inion, 
that  tliis  indenuiity  is  an  e<|uital)le  rej)aration  for  the  material  damage^ 
suil'ered  by  the  family  of  M.  Brun.  This  sum  represents  in  caintal  the 
amunil  salary  of  the  (hrector  of  the  PVench  ci)mi)any.  who  earned  in 
])ursuit  of  his  duties  from  20,000  to  2.'), 000  bolivars.  We  should  reach 
a  nmch  greater  sum  if  we  calculated  the  indemnity  at  the  normal  rate 
of  interest  in  Venezuela,  which  is  ])ractically  12  per  cent.  We  ought 
to  consider  besides  that,  nccoi'ihn;^  to  tlic  Ici'nis  of  the  'pioiocol,  liiis 


OPINION    OF    FRENCH    COMMISSIONER.  13 

indemnity  has  to  be  paid  in  bonds  of  the  diplomatic  debts  and  not  in 
gold.  Thanks  to  this  concession  kindl}'^  granted  by  the  French 
Government  to  the  Vene/Aielan  Government  to  permit  it  to  pay  its 
debts  with  greater  facility,  the  figure  of  the  indenmity  fmds  itself 
singularly  reduced  in  reality.  The  bonds  issued  by  the  Veno/uclan 
Government  have  an  actual  variable  value  in  fact  whicli  always  rests 
far  from  their  nominal  value.  In  ^lay,  1903,  they  underwent  a  depre- 
ciation of  30  per  cent.  To-day  the  Venezuelan  Government,  having 
proceeded  to  new  issues  to  pay  the  indenmities  accorded  by  the  mixed 
commission,  the  depreciation  reaches  70  per  cent.  The  latter  can 
only  increase  still  more  l)y  future  issues.  It  would  be  then,  if  the 
umpire  should  partake  of  the  sentiment  of  the  French  arbitrator, 
scarcely  the  sum  of  150,000  ])olivars  in  gold  which  the  heirs  of  M.  Brun 
would  receive  from  the  Venezuelan  Government.  - 
December  15,  1903. 


EXHIBIT    ATTAC'IIEI)    TO    THE    OPINION    OF    THE    FRENCH    COMMISSIONER. 

Under  date  (if  June  17  last,  (lie  inotlier  of  ^f.  Brun,  having  learned  that  the  Venezuelan 
arbitrator  had  raised  a  cjucstion  of  fact  because  the  Brun  claim  was  not  directly  presented 
by  the  interested  parties,  sent  rae  the  attached  letter. 

Afme.  Brun,  a^ed  and  infirm,  has  counted  upon  the  French  Government  to  sustain  her 
claim  against  the  Venezuelan  Government.  She  declares  that  she  approves  what  the  min- 
istry of  foreign  affairs  has  done  in  her  interest  and  requests  it  to  continue  its  proceeding  in 
the  same  manner. 

June  28,  1904. 

Ijodeve  (Hér.\ult), 

June  17,  1904. 
M.  DE  Pereth  de  la   uOCCA, 

French  Arhilratov  in  Venezuelan  Claims, 

Ministry  of  Foreirin  Affairs,  Paris,  France. 
Sik:  I  have  learned  that  the  Venezuelan  arbitrator  at  Caracas  has  raised  some  difficulties 
with  regard  to  the  claim  which  T  have  for  the  death  of  my  son,  José  Brun,  director  of  the 
Company  of  French-Venezuelan  Railways,  assassinated  at  Santa  Barbara,  Ven(>zuela, 
because  I  have  not  acted  myself,  but  T  count  upon  what  has  been  done  by  the  French  Gov- 
ernment in  maintaining  my  claim  to  follow  its  course. 

I  infonn  you  then  by  the  present  that  I  give  full  approbation  to  what  the  ministry  of 
foreign  affairs  has  done,  asking  it  to  be  pleased  to  luaintain  my  claim  in  the  manner  in  which 
it  has  supported  it  itself. 

Widow  Brun  (née  Carreo). 
Boulevard  de  l'Hôpital, 

Maison  Laurès,  Lodève,  Tlérault. 


ADDITIONAL  OPINION  OF  THE  VENEZUELAN  COMMISSIONER. 

As  commissioner  for  Venezuela,  I  have  held,  as  shown  In'  the 
abstract  of  the  oral  proceedings  had  on  May  27,  1903,  that  the  com- 
mission should  a])stain  from  con.sidering  the  merits  of  the  documents 
produced,  as  at  first  glance  it  appeared  that  a  claim  for  indemnifica- 
tion had  not  been  properly  entered  against  the  Venezuelan  Govern- 
ment by  a  citizen  or  a  party  in  interest  of  French  nationality,  showing 


14  CASE  OF  HEIRS  OF  JULES  BRFN. 

his  capacity  as  universal  heir  to  M.  Jules  Brun,  nor  his  legal  title  to 
receive  any  sum  by  wa}'  of  indemnification.  I  also  held  that,  from  the 
examination  of  the  documents  then  before  me,  no  cause  was  shown  to 
substantiate  the  allcf^ed  liability  of  the  Venezuelan  Government  for 
the  death  of  M.  Brun,  as  the  testimony  of  the  eyewitnesses  clearly 
proved  that  the  death  of  the  party  was  produced  accidentally,  was 
due  to  a  casualty,  at  the  time  an  armed  conflict  was  takino;  place  near 
his  residence. 

In  support  of  the  first  point  held  in  my  opinion,  I  he^  to  call  the 
attention  of  the  honorable  umpire  to  the  precise  lan<xuaoje  of  article  1 
of  the  protocol  made  in  Paris  on  the  17th  of  February,  1902,  to  which 
the  existence  of  the  present  commission  is  due,  and  supplemented  by 
article  2,  relating  to  claims  submitted  to  the  investigation  and  decision 
of  said  commission. 

Both  articles  refer  to  claims  for  indemnification  ¡presented  hy  French 
citizens  only,  and  this  commission  can  not,  because  more  or  less 
plausible  reasons  of  similarity  or  inference  are  put  forth,  extend  its 
limited  powers  to  deal  with  other  matters,  except  such  as  are  hrought 
before  it  hy  French  citizens  in  the  shape  of  a  claim  demanding  a  stated 
indemnification.  Individual  action  is  one  of  the  requisites  necessary 
to  the  possibility  or  faculty  of  the  commission  to  deal  with  cases 
involving  private  interests  of  French  citizens  who  claim  as  against  the 
Venezuelan  Government  to  have  sustained  damages  or  to  be  aggrieved 
parties. 

Other  ([uestions  exclusively  affecting  the  Governments  of  both 
countries  do  not  come  within  the  scope  of  this  commission,  in  the  same 
manner  that  the  dij)lomatic  action  of  the  Government  taking  in  hand 
the  representation  and  defense  of  the  rights  of  its  citizens  does  not 
extend  so  far  as  to  create  such  rights  nor  to  enforce  them  when  the 
party  concerned  has  not  made  use  of  such  right  nor  yet  to  supersede  the 
party  when  the  party  has  not  shown  signs  of  existence.  It  is  not 
amiss  to  quote,  in  this  connection,  the  opinion  of  the  learned  com- 
missioner, Mr.  Little,  in  the  claims  of  Narcissa  de  Hammer  and  Amelia 
de  Brissot,  before  the  commission  created  by  the  convention  of  Decem- 
ber, 1885,  between  Venezuela  and  the  United  States  : 

This  of  course,  is  not  saying  that  the  United  States  has  no  cause  for  reclamation  on  the  ac- 
count of  the  kiUing  of  her  citizens — Captain  Ilaniiner  and  Mr.  lirissot.  It  is  only  hold- 
ing that  under  tiie  terms  of  the  convention  the  c|uestion  is  not  submitted  to  us.  It  would 
be  to  go  beyond  the  limits  of  just  interpretation  and  to  enter  tiie  forbidden  domain  of 
judicial  legislation  to  say  that  claims  on  the  part  of  citizens  means  or  includes  claims  gromng 
out  of  the  injuries  to  citizens.     (Moore,  24.59-2460.) 

All  questions  relating  to  the  nationality  of  the  claimant  and  to  the 
legal  status  or  judicial  capacity  of  the  jicr.son  to  receive  an  award 
grow  out  of  the  jiroscntation  of  such  person  as  a  claiuiant,  whether  it 
is  a  real  living  person  or  a  judicial  person,  which  by  law  has  a  sup- 


ADDITIONAL    OPINION    OF    VENEZUELAN    COMMISSIONER.  15 

])osod  existence.  On  the  other  hand,  the  claim  must  state  the  amount 
claimed  as  a  fair  indemnification,  such  data  as  arc  furnished  by  the 
claimant  being  of  great  importance  in  the  estimation  of  damages. 

None  of  the  requisites  is  found  in  the  documents  submitted  to  the 
commission,  as  such  evidence  only  consistod  of  a  collection  of  notes 
and  depositions  made  by  employees  of  the  company  and  consular  offi- 
cers in  regard  to  the  death  of  M.  Jules  Brun.  From  the  contents  of 
said  notes  in  regard  to  the  consular  action  it  appears  that  such  action 
was  reduced  to  soliciting  immediately  after  the  death  of  M.  Brun  the 
cooperation  of  the  Venezuelan  authorities  for  the  further  investiga- 
tion of  a  fact  then  made  sufficientl}^  clear  by  the  testimony  of  the  only 
eyewitnesses  to  the  accidental  wounding,  the  employees  of  the  com- 
pany.    Such  extreme  investigation  was  asked  for  the  sole  purpose  of — 

securing  tlic  possibility  that  the  parties  concerned  may  have  to  enter  «  precise  claim  on 
the  subject,  being  thus  enabled  to  base  it  upon  proofs  established  according  to  legal 
proceedings. 

The  telegram  of  M.  Hanotaux,  minister  of  foreign  affairs  of  France, 
to  the  French  legation  at  Caracas  reads  as  follows  : 

Prenez  dispositions  nécessaires  pour  sauvegarder  droits  éventuelles  famille  Brun. 

[Translation.] 

Take  necessary  steps  to  safeguard  eventual  rights  of  Brun  family. 

What  is  the  meaning  of  the  note  of  M.  Quiévreux  and  of  this  tele- 
gram? That  it  might  be  possible  for  the  interested  parties  to  enter  a 
precise  claim  on  this  subject  and  that  the  consular  agent  should  en- 
deavor to  safeguard  anj^  eventual  rights  of  the  Brun  family.  Neither 
has  the  claim  been  made  precise,  nor  is  there  anything  to  show  that 
such  rights  of  the  Brun  family  have  passed  from  their  eventual  con- 
dition to  that  of  positive  and  distinct  rights;  nor  has  the  French 
Government  duly  entered  any  such  claim  against  the  Venezuelan  Gov- 
ernment in  behalf  of  the  Brun  family,  nor  yet  has  it  deemed  that  the 
case  has  arrived  when,  by  \drtue  of  its  sovereignty  and  in  view  of  the 
testimony  furnished  by  the  employees  of  the  company,  witnesses  to  the 
wounding  of  M.  Brun,  said  Government  should  demand  a  certain 
sum  of  money  from  the  Venezuelan  Government  as  an  amend  for  a 
wrong  done  to  the  nation  or  as  a  penalty  and  under  no  circumstances 
by  way  of  a  humanitarian  compensation  or  a  charitable  gift  made  to 
the  Brun  family.  These  courts  can  not  measure  in  money  the  wrong 
done  to  a  nation,  as  a  nation,  in  case  such  wrong  exists,  nor  have  they 
been  created  to  make  grants  in  order  to  remedy  the  needs  of  a  widow 
and  orphans  by  reason  of  the  accidental  death  of  a  beloved  husband 
and  father. 

The  honorable  commissioner  for  France  has  lately  produced  as  an 
annex  to  his  opinion  a  letter  from  M.  Brun's  relict,  dated  on  the 
17th  of  June  of  last  year — that  is,  one  year  after  having  presented  and 


16  CASK  OK  HKIRS  OK  JULES  BRÜN. 

examined  the  documents  in  the  case  wliich  I  had  before  me  in  Caracas 
when  I  gave  my  opinion  on  the  case.  Sucli  letter  lacks  weight,  as  it 
only  ratifies  the  proceedings  adopted  in  this  matter  bj' the  minister  of 
foreign  affairs  of  France,  and  it  has  been  shown  that  such  proceedings 
do  not  constitute  a  claim  for  an  indemnification  for  a  given  sum  in 
behalf  of  a  given  person.  That  which  has  had  no  existence  can  not 
be  the  subject  of  approval  or  ratification.  That  which  lacks  legal 
force  because  of  the  omission  of  an  indisjiensable  requisite  to  make 
the  act  or  contract  valid  may  be  ratified  or  approved  in  order  to 
make  it  valid.  To  do  this,  however,  it  is  also  indis])ensable  that  such 
act  or  contract  should  exist  even  in  a  weak  condition.  That  which 
has  never  existed  can  not  be  ratified  or  revalidated,  and  the  claim  of 
Mme.  Brun  against  the  Venezuelan  Government  for  indemnification 
did  not  exist  either  prior  to  or  at  the  time  of  the  signature  of  the  pro- 
tocol of  February  17,  1902,  nor  yet  during  the  six  months  provided 
by  article  2,  as  an  extension  of  the  time  granted  for  the  presentation 
and  the  examination  in  the  first  place  by  the  French  and  Venezuelan 
commissioners  of  all  claims  for  indemnification  growing  out  of  events 
prior  to  May  23,  1899. 

In  consequence  I  maintain  the  first  point  of  my  opinion  that,  as  no 
claim  whatever  for  indemnification  was  presented  in  due  time  by  or 
in  behalf  of  a  specified  French  citizen,  this  commission  is  not  under 
obligation  to  examine  the  documents  bearing  on  the  case  in  point,  as 
the  commission  has  no  authority  in  the  premises,  and  that  the  claim 
must  therefore  be  rejected. 

In  case  the  honorable  umpire  should  deem  it  proper  to  examine  the 
docimients  in  reference  on  their  merits  and  to  weigh  the  proof  of  the 
facts  in  order  to  ascertain  whether  the  conclusions  arrived  at  b}-  the 
honorable  commissioner  for  France  and  the  assertions  contained  in  his 
memorandum  in  regard  to  the  death  of  M.  Jules  Brun  are  justified,  I 
have  no  need  to  go  into  a  deep  analysis  of  the  testimony  introduced 
to  convince  the  honorable  umpire  of  the  slight  connection  there  is 
between  the  opinion  of  my  learned  colleague  and  the  conclusive  proof 
shown  by  the  testimony  of  the  eyewitnesses,  MM.  A.  Crinière,  book- 
keeper of  the  company  and  J.  B.  Peysselon,  representative  of  the  com- 
pany after  the  death  of  M.  Brun. 

Mr.  Crinière's  verbatim  testimony  is  as  follows: 

Dans  la  matini^e  du  (litnaiiclic  8  mai,  ciaignant  un  (>n}îaf;enu'iit  s^ínoux  des  dcu.v  parties, 
nous  arborions  vers  les  di.\'  heures  du  matin  ù  la  maison  de  la  Direction  des  drapeaux  nos 
couleurs  franvaises,  dont  doux  à  la  fenêtre  du  salon  donnant  sur  la  place,  par  M.  Brun  lui 
môme  et  aid¿  de  Miguel  Labarca,  deux  par  moi  dont  un  tI•^s  grand  sur  la  rue  Santt>  Domingo; 
c'est  ]Hir  cette  rue  que  les  soldats  de  la  force  léi/ale  ouf  entouré  le  village  et  où  donnait  la  chambre 
dans  la(|uelle  .\I.  lîmn  a  trouxY- la  mort  en  fermant  une  fenêtre.  *  *  *  t'ne  vive  fusil- 
lade éclate  au  même  moment  dans  la  rue  Santo  Doininijo;  c'était  les  soldats  envoyés  de 
Muracail)ii  (pii  amcaient  ]>ar  le  fond  du  lùlUujc,  et  prenant  par  derriêix*  les  fi)rces  de.s 
genereaux   Kiguora    et   Pozo,    inunédialement    .Messieui"s    Hrun,   Peysst>lon  et    moi,  jtous 


ADDITIONAL    OPINION    f)F    VENEZUELAN    COMMISSIONER.         17 

précipitons  pour  fermer  portes  et  fenêtres  pour  nous  préserver  des  proyectiles.  Déjà  j'avais 
entendu  comme  un  hruit  de  plâtre  tomber  derrière  moi;  c'était  uno  balle  qui  avait  traversé  la 
fenêtre  du  salon  donnant  sur  la  place  et  munie  des  deux  drapeaux  (a  window  different  from 
the  one  where  a  few  moments  later  M.  Brun  wa-s  wounded)  et  presque  aussitôt  j'entendais 
Monsieur  Brun  s'écrier:  Ah,  je  suis  blessé,  nous  tous  nous  précipitons  vers  lui  pour  lui  por- 
ter secours  et  lui  voyons  la  main  droite  horriblement  mutilée  d'une  balle.  Tout  ceci  a  duré 
l'espace  d'un  éclair.  *  *  *  J'ai  été  témoin  de  tous  ces  faits  et  je  suis  en  possession  du 
verrou  de  la  fenêtre  de  la  chambre  de  Monsieur  Brun,  et  aussi  d'une  balle  que  j'ai  ramassée 
au  milieu  du  salon  (not  M.  Brun's  room);  je  les  tiens  à  votre  di.sposition  et  ils  prouveront  sur- 
abondamment la  véracité  de  ces  faits  regrettables. 

[Translation.] 
On  the  morning  of  Sunday,  May  S,  fearing  a  serious  fight  between  the  two  parties,  we 
hoisted  our  French  colors  at  about  10  a.  m.  over  the  company's  house.  Two  of  said  flags 
were  placed  in  the  window  of  the  parlor  overlooking  the  .square  by  M.  Brun  himself,  a.ssisted 
by  Miguel  Labarca,  and  two  by  me,  the  very  large  one  in  the  window-  facing  the  street  of 
Santo  Domingo.  It  was  by  this  street  that  the  legal  troops  surrounded  the  village  and 
which  the  window  overlooked  where  M.  Brun  met  his  death  in  closing  this  window.  A 
lively  fusillade  rang  out  at  that  moment  on  Santo  Domingo  street;  it  came  from  the  soldiers 
sent  from  Maracaibo,  who  were  arriving  at  the  rear  of  the  village,  taking  the  forces  of  Gen- 
erals Figuera  and  Pozo  at  their  liack.  Messrs.  Brun,  Peysselon,  and  I  at  once  proceeded  to 
close  doors  and  windows  to  protect  ourselves  from  the  mùssiles.  I  had  already  heard  a 
noise  behind  me  as  of  falling  plaster;  it  was  from  a  ball  that  had  come  through  the  parlor 
window  that  overlooked  the  square  and  from  which  hung  the  two  flags;  almost  at  the  same 
instant  I  heard  M.  Brun  cry  out,  "I  am  wounded."  We  all  rushed  to  his  aid  and  found  his 
right  hand  horribly  mangled  by  a  ball.  All  this  had  happened  in  a  flash.  I  have  been  a 
wMtness  to  these  events  and  have  in  my  pos.session  the  window  bolt  of  M.  Brun's  room  and 
also  the  ball  which  I  picked  up  in  the  middle  of  the  salon;  they  are  entirely  at  your  dis- 
posal and  afford  abundant  proof  of  these  lamentable  facts. 

Mr.  Peysselon  states: 

Le  dimanche  S.  les  troupes  legales  amenées  parle  vapeur  Progreso  arrivaient  à  midi  et  demi 
dans  "le  pueblo."  Nous  devions  dans  cette  circonstance  prévoir  une  bataille  dans  les  rues. 
Cette  prévoyance  nous  commandait  de  fermer  immédiatement  toutes  les  portes  et  volets  de  notre 
maison  d'habitation;  pendant  que  je  fermais  une  fenêtre  donnant  sur  la  place,  M.  Brun 
fermait  celle  de  sa  chambre  donnant  sur  la  rue  Santo  Domingo;  au  même  instant  la, fusillade 
commençait  dans  cette  rue,  la  fenêtre  était  déjà  fermée,  mais  Monsieur  Brun  n'avait  encore 
pas  eu  le  temps  de  quitter  la  main  dessus  le  verrou,  quand  une  balle  d'arme  de  précision  est 
venue  traverser  le  volet,  tordre  le  verrou  d'une  façon  extraordinaire,  percer  de  part  à  part  la 
main  de  Mons.  Bran,  et  lui  projeter  des  éclats  en  pleine  poitrine.  *  *  *  Mons.  Bran 
est  resté  à  Santa  Bárbara  jusqu'à  la  première  occasion  pour  descendre  à  Maracaibo  et  il  a  été 
embarqué  le  jeudi  matin  vers  les  dix  heures  avec  plus  grands  soins.  Son  état  ne  nous 
permettait  pas  de  prévoir  une  is.sue  aussi  fatale  et  si  prompte.  Il  est  mort  pendant  la 
traversée,  le  même  jour  à  8  heures  45  minutes  du  soir.  Tel  est  l'exposé  sincère  des  faits 
dont  j'ai  été  témoin  oculaire  jusqu'à  l'embarquement  de  M.  Brun. 

[Tran.<!l!ition.] 
On  Sunday,  the  8th,  the  legal  troops  brought  on  the  steamer  Progreso  arrived  in  the 
"pueblo"  at  half-past  twelve,  noon.  Under  such  circumstances  we  anticipated  a  fight  in 
the  streets.  This  led  us  to  immediately  close  all  the  doors  and  shutters  of  our  dwelling  house. 
While  I  was  closing  a  window  overlooking  the  square  M.  Brun  was  closing  that  of  his  room 
facing  Santo  Domingo  street;  at  the  same  moment  firing  began  in  this  street;  the  windoir  had 
been  already  closed,  but  M.  Bran  had  not  had  time  yet  to  withdraw  his  hand  from  the  bolt 
when  a  bullet  from  a  rifle  {arme  de  précision)  came  and  perforated  the  shutter,  tivisted  the  bolt 
in  an  extraordinary  manner  and  pierced  through  the  hand  ofM.  Brun,  sending  splints  all  over 
his  chest.  M.  Bran  remained  in  Santa  Bárbara  until  the  first  opportunity  to  go  down  to 
S.  Doc.  533—59-1 2 


18  CASE  OF  HEIRS  OF  JULES  BRUN. 

Maracaibo.  He  was  embarked  Thursday  morning  at  about  10  o'clock  with  the  greatest 
care.  His  state  did  not  warrant  our  foreseeing  such  a  fatal  and  sudden  issue.  He  died 
during  the  trip  on  the  same  day  at  8.45  in  the  evening.  This  is  a  sincere  statement  of  the 
facts  of  which  I  was  an  e^'ewitness  until  M.  Brun  was  put  aboard. 

After  readinf;  such  sincere  and  truthful  accounts  given  by  two 
responsible  parties,  enilo^'ees  of  the  copmpany  and  fellow-countrymen 
of  M.  Brun,  how  can  it  be  explained  that  the  learned  commissioner 
should  in  his  opinion  endeavor  to  construe  a  mere  accident  of  war 
which  the  VenezueL:n  authorities  were  the  first  to  deplore,  as  sho\\Ti 
by  the  record  of  the  case,  into  a  miu-der  committed  Tcnowingly  and 
perhaps  with  premeditation,  averrint;  at  the  same  time  that  the  wound 
received  by  M.  Brun  was  due  to  a  shot  from  a  voUey  designedly  aimed 
at  the  window  by  regular  soldiers  who  hnew  him?  Where  is  the  proof 
of  so  grave  an  accusation?  Inferences  like  these,  wliich  oriorinate  in 
the  mind  preoccupied  with  the  idea  of  finding  guilt  where  there  is  only 
a  regrettable  incident,  as  indicated  by  the  testimony  of  M.  Crinière, 
can  not  fail  to  bring  to  the  mind  of  an  impartial  and  upright  judge 
the  convicti(m  that  such  an  assertion  lacks  all  reasonable  foundation. 

So  grave  a  chaise  against  the  Government  of  any  country  should  be  maintained  by 
the  most  unquestionable  proof.  It  should  be  alleged  as  a  distinct  fact  and  ground  of  recla- 
mation and  proved  by  evidence  of  the  clearest  character.  Case  of  Johnson  r.  Mexico, 
before  the  Mexican  Claims  Commission,  1849.     (Moore,  p.  3032.) 

As  a  proof  of  the  correctness  of  his  assertions  M.  de  Peretti  de  la 
Rocca  introduces  in  his  memorandum  a  statement  of  the  inspection 
he  himself  made  of  the  house  wherein  ]\I.  Brun  was  w^ounded,  when 
he  went  to  Santa  Bárbara  on  board  of  the  French  cruiser  Jouif'roy,  in 
the  course  of  a  trip  to  Venezuela,  five  j^ears  after  the  incident.  M. 
de  Peretti  states  that  according  to  the  declarations  made  to  liim  by  the 
civil  authority  (jefe  civil)  and  prominent  persons  who  were  m  Santa 
Bárbara  at  the  time  the  town  was  captured — 

The  troops  that  fired  came  through  a  street  running  at  right  angles  to  the  side  of  the 
house  where  M.  Brun's  window  lies,  and  that  there  were  neither  in  the  house  nor  in  the 
street  any  revolutionists  whose  presence  might  explain  the  firing  and  that  the  armed  troop 
was  under  the  command  of  an  oflicer  by  the  name  of  Montiol  and  consisted  of  soldiers  well 
acquainted  with  M.  Brun's  house  and  M.  Bmn  himself. 

This  supplementary  proof  wliich,  for  lack  of  a  better  one,  the  hon- 
orable commissioner  for  France  endeavors  to  introduce,  a  proof  rest- 
ing upon  his  personal  investigation,  lacks  all  force  in  the  present 
instance  as  we,  the  commissioners,  must  give  our  several  decisions 
in  strict  accordance  with  the  proofs  submitted  ex  parte,  and  we  can 
not  find  other  elements  to  form  our  opinion  unless  they  are  from  the 
documentar}'  evidence  submitted  to  us.  To  act  otherwise  woidil  be 
tantamount  to  changing  the  mission  of  arbitrator  and  become  an 
earnest  defender  of  one  of  the  parties.  In  order  to  show  how  easy  it 
is  to  err  when  the  field  of  sober  thought  is  left  where  the  judge  nuist 
preside  to  enter  into  the  arena  where  the  eager  defense  is  made  it  suf- 


ADDITIONAL    OPINION    OF    VENEZUELAN    COMMISSIONER.         19 

fices  to  compare    the  text  of    the  depositions  of    the  eyewitnesses 
Crinière  and  Peysselon  with  the  report  of  the  French  commissioner. 
The  witnesses  state: 

It  was  by  Sanio  Domingo  tttrett  that  tlie  soldiers  of  tlie  Icf^al  troops  surrounded  tlio  town, 
and  M.  Brun's  room,  where  he  was  wounded  when  shutting  a  window,  overlooks  the  street. 
*  *  *  A  lively  fusillade  rano;  out  at  that  moment  in  Santo  Domingo  street.  It  came  from 
the  soldiei-s  sent  from  Maracailx),  who  ivere  arriving  at  the  rear  of  life  town  and  taking  the 
re\'()lutionar3'  forces  at  their  hack;  immediatel}'  (we)  proceeded  to  close  doors  and  windows 
to  ]>roiert  oursehrs  from  the  missiles.  I'uder  such  circumstances  we  anticipated  a  light  in 
the  streets.    This  led  us  to  immediately  close  all  the  doors  and  shutters  of  our  dwelling  house. 

While  I  was  closing  a  window  (Peysselon  states)  overlooking  the  scjuare,  M.  Brun  was 
closing  that  of  his  room  facing  Santo  Domingo  street,  and  at  the  same  moment  the  firing 
began  in  this  street.  The  window  had  been  already  closed,  but  M.  Brun  had  not  yet  had 
time  to  withdraw  his  hand  from  the  bolt  when  a  bullet  from  a  rifle  perforated  the  .shutter, 
twisted  the  bolt  in  an  extraordinary  manner,  and  pierced  the  hand  of  M.  Brun. 

Now,  do  not  these  two  depositions  clearly  show  the  innninent  risk 
which  all  the  persons  living  in  the  house  were  running  that  the  mis- 
siles might  come  in  through  doors  and  windows,  and  for  this  reason 
they  hastened  to  close  them?  And  was  it  not  precisely  in  obedience 
to  the  instinct  of  self-preservation  that  M.  Bnm  went  to  the  window 
in  his  room,  which  faced  Santo  Domingo  street,  when  a  lively  fusillade 
rang  out  in  this  street,  and  while  being  precisely  there  with  his  hand 
still  on  the  bolt,  the  window  being  closed,  a  bullet  wounded  his  hand? 

Neither  the  conclusions  arrived  at  by  the  learned  commissioner 
from  France  in  the  narrative  of  his  ocular  inspection  nor  his  theory 
of  the  perpendicular  line  in  the  subject  of  the  direction  of  projectiles 
in  a  fight,  which  grew  to  the  proportions  of  a  battle,  can  alter  in  the 
slightest  degree  the  deep  conviction  produced  by  the  depositions  of 
Peysselon  and  Crinière  that  the  wound  received  by  M.  Brun,  which 
some  da3^s  later  brought  about  his  lamented  death,  was  an  accident, 
and  by  no  means  the  outcome  of  a  malicious  plan. 

I  beg  to  call  the  attention  of  the  honorable  umpire  to  the  contents 
of  the  official  communications  addressed  by  the  president  of  the  State 
of  Zulia,  and  by  the  commander  of  the  Third  military  zone,  where  the 
town  of  Santa  Bárbara  belongs,  to  M.  Jules  d'Empaire,  in  charge  of 
the  French  considar  agenc}^  in  Maracaibo,  wherein  such  officers 
express  their  earnest  regret  on  account  of  the  death  of  M.  Jules  Brun, 
a  French  subject,  produced  by  a  wound  received  under  sad  and  for- 
tuitous   circumstances. 

With  the  last-named  communication,  the  military  commander  of 
the  zone  also  sends  a  true  copy  of  a  letter  M.  Peysselon,  inspector  of 
the  compan}',  addressed  in  behalf  of  ^I.  Brun  to  the  military  com- 
mander of  the  district,  the  letter  in  question  being  verbatim,  as  follows: 

Como  agente  de  la  compañía  y  por  impedimento  del  Sr.  J.  Bmn  (this  is  four  days  after 
being  wounded),  doy  á  Yd.  las  gracias  por  el  restablecimiento  del  (írden  y  por  haber  tomado 
las  di.sposiciones  eficaces  para  la  traida  del  vapor  Santa  Bárhara.  Nos  complacemos  alta- 
mente verlo  á  Vd.  entre  nosotros  para  protejer  nuestras  personas  y  nuestros  intereses. 


20  CASE  OF  HEIRS  OF  JULES  BRUN. 

[Translation.] 

As  the  agent  of  the  company  and  by  reason  of  disability  on  the  part  of  M.  J.  Bran,  I  beg 
to  thank  you  for  the  restoration  of  order  and  for  having  taken  eíTective  steps  for  the  coming 
of  the  steamer  Santa  Bárbara.  We  are  highly  pleased  to  see  you  among  us  to  protect  our 
lives  and  property. 

Could  it  be  possible  that  M.  Brun  would  instruct  M.  Pevsselon  to 
thank  the  military  connnander  of  the  district  having  under  command 
the  troops  which  made  the  attack  on  the  town  of  Santa  Bárbara,  and 
to  whose  body  the  (jroup  of  soldiers  under  the  officer  Montiel  belon<:ed. 
if  M.  Brun  had  not  been  satisfied  that  the  wound  he  received  and  for 
which  he  was  then  suffering  had  not  been  entirely  accidental? 

I  come  to  a  close,  confirming  in  all  its  particulars  my  former  opinion, 
which  I  send  with  the  present  oj)iniün,  in  which  opinion  I  did'er  from 
my  learned  colleague,  rejecting  in  full  the  claim  that  the  Venezuelan 
Government  must  indemnify  with  any  amount  whatever  the  mother 
or  family  of  M.  Brun  by  reason  of  his  death,  which  was  entirely 
fortuitous  and  does  not  create  any  liability  whatsoever  on  the  part 
of  said  Government. 

NoRTHFiELD,  Vt.,  February  1,  1905. 


ADDITIONAL  OPINION  OF  THE  FRENCH  COMMISSIONER. 

After  having  heard  the  additional  opinion  drawn  up  by  my  hon- 
orable colleague  I  ought  to  declare  that  his  arguments  have  not  in 
any  wise  weakened  my  convictions.  In  the  first  place,  I  maintain 
that  one  could  not  refuse  the  French  Government  the  faculty  of 
the  right  to  interfere  for  Mme.  Brun,  aged  and  infirm,  and  conse- 
cjuently  incapable  of  acting  by  herself.  This  would  be  contrary  to 
humanity,  to  good  sense,  and  to  the  protocol  of  1902.  It  is  suj)ernuous 
to  indicate  in  fact  that  the  French  Government  would  have  failed  in 
its  duty  in  not  ])resenting  this  claim,  but  it  is  important  to  remark 
here  that  it  has  not  in  doing  this  acted  contrary  to  the  obligations 
which  the  protocol  places  upon  it.  Article  2,  which  concerns  the 
claims  which  we  are  considering,  is  formulated  thus: 

The  demand  of  the  indemnities  other  than  those  which  are  covered  by  article  1,  hut 
founded  on  acts  anterior  to  the  23d  of  May,  1899,  shall  be  examined  in  concert,  etc. 

It  is  not  said  that  these  demands  will  have  to  be  presented 
by  the  claimants  themselves,  who  are  at  liberty  to  have  them 
presented  to  the  arbitrators  by  advocates  or  by  their  natural  rei)re- 
sentative  which  is  the  government  of  their  country.  In  the  mixed 
commissions  established  at  Caracas  by  the  protocols  signed  in  lOO.'i 
at  Washington  did  not  each  government  have  an  agent  charged  with 
presenting  the  claims  in  its  name?  It  is  necessary  to  remark  besides 
that  in  the  particular  case  the  French  Government  by  a  scruple  which 


OPINION    OF    UMPIRE.  21 

nil  only  honor  it  has  not  made  itself  the  advocate  of  Mme.  Brun. 
Nothing,  however,  for])ade  tliis,  but  it  is  content  to  serve  as  impartial 
intermediary.  On  the  contrary,  in  denying  the  French  Govern- 
ment the  faculty  of  presenting  this  claim  one  goes  against  the  spirit 
of  the  ])rotocol,  whicli  has  for  its  end  the  settlement  of  all  the  claims 
of  French  citizens,  for  one  would  oblige  the  French  Government  to 
reply  to  this  claim  by  the  diplomatic  way  now  that  the  i)rotocol  has 
been  signed,  precisely  in  view  of  removing  these  difficulties  from  the 
ordinary  course,  to  submit  them  to  arbitration.  In  the  second  place, 
in  my  opinion,  the  responsibility  of  the  Venezuelan  Government  rests 
pliinl}^  established  by  the  incident  which  has  led  to  the  death  of  M. 
Brun.  I  remain  pursuaded  that  M.  Brun  has  not  been  the  victim  of 
a  simple  accident  of  war.  The  results  of  my  personal  investigation 
are  not  at  all  proofs,  without  doubt.  I  present  them  merely  ts  the 
basis  which  hr.s  permitted  me  to  form  a  conviction.  I  persist,  more- 
over, in  considering  the  refusal  of  the  Venezuelan  Government  to 
proceed  after  the  incident  to  an  investigation  upon  the  spot  by  its 
own  officers  as  a  valuable  indication  of  the  fear  which  the  result  of 
such  an  investigation  would  inspire  in  it. 


OPINION  OF  THE  UMPIRE. 

The  honorable  commissioner  for  France  asserts  a  claim  of  500,000 
francs,  while  the  honorable  commissioner  for  Venezuela  rejects  the 
claim  in  its  entirety.     Hence  it  comes  to  the  umpire  for  his  decision. 

The  unquestioned  facts  are  that  in  the  State  of  Zulia  in  the  United 
States  of  Venezuela  on  May  8,  1898,  there  was  a  railroad  extending 
from  San  Carlos  to  Mérida  and  in  San  Carlos  was  the  village  of  Santa 
Barbara  about  the  harbor  of  the  same  name.  That  this  railroad  was 
operated  by  a  certain  French  company,  whose  superintendent  or 
director  was  Mr.  Jules  Brun.  His  residence  and  the  shops  and  offices 
of  the  company  were  in  said  village  of  Santa  Bárbara. 

That  for  some  time  preceding  the  date  mentioned  there  had  been  a 
revolt  ill  the  State  o."  Zulia  against  the  government  of  that  State  and 
of  the  Republic,  and  that  these  insurgents  had  taken  possession  of  the 
country  in  the  vicinity  of  San  Carlos  and  since  May  4  had  been  in 
possession  of  the  said  village  of  Santa  Bárbara.  That  the  govern- 
ment was  taking  measures  through  military  operations  to  dislodge  the 
insurgents  from  this  village  and  to  defeat  and  disperse  them;  and  for 
that  purpose  on  Sunday,  May  S,  the  Government  troops  arrived  in  the 
harbor  of  Santa  Bárbara  on  the  steamer  Progreso,  a  little  before  noon 
of  the  day.  That  about  10  o'clock  in  the  morning  Superintendent 
Brun,  his  associates,  and  those  who  were  occupants  of  the  house  with 
him,  fearing  an  engagement  between  the  two  forces,  placed  conspicu- 
ouslv  five  French  flags  over  their  residence  to  attest  its  neutrality  and 


22  CASE    OF    HEIRS    OF    .TILES    «RUN. 

mark  it  for  |)ri)tec'ti<)ii.  Not  iar  from  12,  noon,  a  l)attle  seemed 
imminent  between  the  two  forces  and  the  inmates  of  this  residence, 
inchidinji  the  suporintondont.  made  hastp  to  close  the  shutters  of  the 
house.  While  Su|)(TÍntendent  Brun  was  engaged  in  closing  the 
shutters  of  the  window  overlooking  the  public  square  he  was  Wounded 
by  a  rifle  ball  coming  from  the  gun  of  a  Government  soldier,  which 
penetrated  the  shutter,  struck  the  bolt  and  drove  it  into  his  right 
hand,  the  ball  passing  through.  It  proved  to  be  a  most  serious  injury, 
crushing  the  hand  and  bones  and  lacerating  the  arteries,  so  that  he 
lost  seriously  in  blood  and  had  a  very  jagged  wound.  Four  other 
rifle  bullets  penetrated  the  house,  coming  through  the  window  prac- 
tically at  the  same  time  with  this  one  which  wounded  Mr.  Brun. 
Almost  immediately  following  tho  wound  two  of  the  inmates  went  to 
the  door  to  call  a  ph^^sician  and  found  standing  very  near  th?  residence 
about  twenty  soldiers,  certain  minor  officers,  and  General  Montiel  in 
charge.  At  substantially  the  same  moment  of  the  firing  into  the 
house  as  aforesaid  the  doorsof  the  principal  shop  and  the  office  of  the 
bookkeeper  and  the  telegraph  office  belonging  to  this  com])any  were 
broken  downi  by  the  Government  soldiers  l>y  the  order  of  General 
Montiel. 

There  were  summoned  as  soon  as  possible  to  the  aid  of  Mr.  Brun 
competent  physicians  and  surgeons  who  gave  him  thereafter  so  long 
as  he  survived  skillful  care  and  attention.  However,  despite  the  best 
of  care,  gangrene  supervened  and  Mr.  Brun  died  from  the  effects  of  the 
wound  on  May  12,  four  days  a'tor  the  wounding. 

May  14,  two  days  after  the  death  of  Mr.  Brun,  the  gentleman  then 
in  charge  of  the  French  company's  Venezuelan  railroad  made  applica- 
tion in  writing  to  the  citizen  judge  of  that  district,  praying  that 
judicial  proceedings  be  had  to  ascertain  the  facts  connected  with  the 
injury  and  death  of  Mr.  Brun  and  the  damage  to  the  railroad  pro]v.^rty 
occurring  at  the  same  time.  There  was  no  reply  to  his  re(iuest,but 
General  Montiel  evidenced  a  violent  hostility  to  this  request.  Follow- 
ing this  application  there  came  letters  from  the  chargé  d'aíTairesof 
France  at  Caracas  to  the  minister  of  foreign  afl'airs  of  Venezuela,  the 
first  being  written  on  June  4  and  the  second  on  June  12,  asking  the 
minister  to  request  the  local  authorities  of  the  State  of  Zulia  to  take 
the  i)r()i)('r  judicial  stejis  to  ascertain  the  exact  truth  of  the  events  of 
May  8,  resulting  in  the  fatal  wounding  of  Mr.  Brun  and  the  damage  to 
the  railroad  property.  The  first  comnumication  was  not  answered, 
but  to  the  second  letter  a  reply  was  ma<le,  courteous  and  sympatlu^tic, 
but  claiming  that  the  injury  arose  under  such  circumstances  as  to  Vee 
the  Government  of  Venezuela  of  all  liability  for  the  death  of  Mr.  Brun 
and  the  damages  to  the  railroad  pr()i)erty  and  declining  to  accede  to  the 
request  of  the  chargé  d'aflfaires  that  the  facts  be  ascertained  by  pioper 
judicial  inquiry. 


OPINION    OF    UMPIRE.  23 

It  appears  that  in  conversation  the  niihtary  authorities  of  ZuHa 
explained  the  attack  of  the  Government  troops  upon  the  property  of 
the  French  company,  on  the  f^round  that  the  company  liad  revolutionists 
concealed  in  its  oflice.  This  allegation  is  wholly  denied  by  the  repre- 
sentatives of  the  company. 

Mr.  Jules  Brun  was  38  years  old  at  the  time  of  liis  death,  was 
unmarried,  was  a  French  citizen,  and  was  superintendent  of  a  railroad 
at  a  salary  of  25,000  francs  a  year,  and  he  left  surviving  him  as  next 
of  kin  his  mother,  a  widow  and  a  resident  citizen  of  France,  who  still 
survives.  It  is  in  her  interest  that  this  claim  is  presented  by  the 
French  Government. 

It  is  not  claimed  by  the  honorable  commissioner  for  Venezuela,  nor 
has  it  been  claimed  in  any  of  the  correspondence  between  the  com- 
pany and  the  Government  of  Venezuela  that  either  the  French  com- 
pany or  Mr.  Brun  had  failed  to  observe  proper  neutrality;  and  no 
claim  is  made  by  the  Venezuelan  Government  that  anything  done  on 
May  8th  by  the  military  authorities  was  because  of  any  aid  given  to 
the  insurgent  forces  by  the  company  or  b}^  anyone  directly  or  indirectly 
in  its  behal!",  so  that  the  umpire  takes  no  account  of  the  claim  ol  the 
military  authorities  of  Zulia,  stated  above. 

There  are  certain  other  matters  of  fact  which  will  be  especially 
adverted  to  in  the  progress  of  the  opinion. 

Reference  may  be  had  to  the  very  able  opinions  of  the  honorable 
commissioners  to  learn  their  respective  positions  upon  the  facts  as 
developed;  and  the  umpire  takes  this  opportunity  to  express  his 
appreciation  of  their  great  value  to  him  in  considering  and  determining 
this  claim  and,  as  well,  his  obligation  to  the  honorable  commissioners 
for  their  valued  answers  to  the  interrogtories  submitted  by  him  to 
them. 

The  honorable  commissioner  for  Venezuela  contends  that  the  occur- 
rence was  of  such  a  nature,  its  circumstances  so  precise,  so  evident,  that 
all  investigation  after  the  death  of  Mr.  Brun  concerning  the  manner  of 
his  death  became  unnecessary.  That  this  evidence  disclosed  indis- 
putably that  the  wound  was  an  ac<,'ident  due  to  a  casualty  and  at  the 
time  an  armed  conflict  was  taking  place  near  his  residence.  In  fact, 
that  it  was  an  ordinary  hazard  of  war. 

Out  of  the  same  facts  the  honorable  commissioner  for  France  finds 
that  there  are  shown  to  have  been  no  insurgents  in  the  street  near  the 
house,  the  presence  of  whom  would  explain  the  shots  fired,  and  that 
the  troops  who  did  the  firing  were  at  the  time  under  command  of  a 
general  of  the  national  army,  and  that  the  bullets  which  struck  the 
house  and  the  bullet  which  wounded  to  his  death  Mr.  Brun  were  the 
result  of  an  unprovoked,  unnecessary,  and  murderous  attack  on  a 
well-known  neutral  who  personally  was  held  in  high  regard  by  the 


24  CASE  OF  HEIRS  OF  JULES  BRUN. 

citizens  and  oilicials.  lie  considers Ihe  damage  to  the  buildings  of  the 
com])any  at  the  same  time  to  be  corroborative  of  this  view. 

The  umpire  does  not  see  in  the  injury  of  Mr.  Brim  and  of  the  prop- 
erty of  the  French  company  any  certain  indication  of  a  dehberately 
hostile  act  to  liim  or  to  the  property.  Indeed,  the  sorrow  of  the  presi- 
dent of  the  State,  of  the  chief  of  the  national  forces,  and  of  the  inhabi- 
tants generally  was  so  marked  and  so  sincere  that  to  iind  such  a  fact 
as  is  alleged  by  the  honorable  commissioner  of  France  would  recjuire 
very  strong  and  ])ositive  proof — proof  to  a  degree  of  which  this  case  is 
wholly  destitute. 

The  umpire  is  convinced,  however,  that  there  were  no  insurgent 
forces  in  the  immediate  vicinity  of  the  house  of  Mr.  Brun  at  the  time 
of  his  being  wounded.  The  umpire  arrives  at  this  conclusion  by  an 
analysis  of  all  the  facts  which  have  come  to  his  knowledge  in  this  case. 
(a)  AMien  the  hring  had  ceased,  Mr.  Peysselon  ran  from  the  house  to 
call  a  doctor  and  ]\Ir.  Crinière  followed  to  get  water.  Mr.  Crinière  saw 
some  of  the  national  troops  near  the  entrance  to  the  house,  but  he 
mentions  no  insurgents,  (b)  Mr.  Peysselon  said  that  their  egress 
ft'om  the  house  was  immediately  after  Mr.  Brun  was  wounded  and  that 
he  found  himself  "face  to  face  with  about  twenty  armed  men  of  the 
Government  *  *  *^  General  Montiel  in  command."  As  the 
doctor  did  not  come,  he  went  out  a  second  time  and  saw  General  Mon- 
tiel and  two  of  his  lieutenants,  whom  he  names.  But  neither  then  nor 
before  does  he  make  mention  of  the  insurgent  forces,  nt)rdoeshe  men- 
tion seeing  any  insurgent  forces  while  going  after  the  doctor  or  return- 
ing therefrom  on  either  occasion,  (c)  The  umpire  fails  to  Ihul  any 
statement  by  anyone  in  any  part  of  the  papers  of  the  claim  suggesting 
the  immediate  presence  of  the  insurgents  at  these  premises  at  any 
time  before,  during,  or  after  the  battle,  (d)  It  is  accepted  apparently 
by  all  parties,  individual  and  governmental,  that  the  shots  in  (¡uestion 
were  iired  by  Government  troops.  If  there  had  Ihhmi  also  ])n»sent  and 
engaged  in  an  armed  conflict  insurgçnt  troops  and  there  luul  been  at 
this  point  at  the  time  in  (|uestion  a  battle  t)r  even  a  ."íkirmish  in  ])ro- 
gress  in  which  both  were  i)articipating,  there  would  have  been  always 
a  serious  question  whether  these  shots  w^ere  in  fact  from  national  or 
insurgent  gvms.  (e)  The  fact  that  immediately  following  the  injury 
there  weie  twenty  armed  soldiers  and  a  general  in  conunand  at  repose, 
apparently,  near  this  building;  that  the  general  and  his  lieutenants,  at 
least,  renuiined  there  until  such  delay  had  occurred  tiuit  a  second 
attempt  was  made  to  call  the  doctor,  are  atti(ud(\s  and  facts  which 
remove  the  probability  that  the  shots  which  hit  the  house  and 
wounded  Mr.  Brun  were  fired  in  the  midst  of  battle  against  a  contend- 
ing or  even  a  fleeing  force,  (f)  When  I'eysselon  or  Crinière  went  out 
from  the  house  there  was  no  insurgent  rone  in  retreat,  iIumc  was  no 
national  force  ])ursuing.      (g)  There  is  an  entire  ahs(>nce  of  ¡dl  ¡nihcia 


OPINION    OF    UMPIRE.  25 

common  to  such  an  occasion,  if  there  had  been  at  this  point  a  battle  or 
even  a  skirmish.  The  umpire  is  satisfied,  therefore,  to  a  moral  cer- 
tainty that  no  battle  took  place  around  or  near  this  house  at  the  time 
in  question,  and  that  the  firing  which  did  occur  and  from  which  the  fatal 
wound  resulted  was  unnecessary,  and  was  in  the  presence  of  a  high 
oilicer  in  command  of  the  military  forces.  From  all  of  the  facts  in  the 
case  the  umpire  finds  that  the  bullet  wound  thus  inflicted  was  the 
proximate  cause  of  the  death  of  Jules  Bnin,  that  the  injur}^  came 
under  circumstances  engaging  the  responsibility  of  the  respondent 
Government,  and  that  it  must  be  held  in  damages  for  such  sum  as  in 
equity  should  be  assessed  therefor. 

The  umpire  might  hesitate  to  adopt  these  findings  if  it  were  not 
true,  and  had  not  been  always  true,  that  the  respondent  Government 
could  ascertain  and  produce  before  this  mixed  commission  the  exact 
facts  regarding  the  positions  and  movements  of  its  own  soldiers,  and 
the  position  and  movements  of  the  insurgent  forces  at  the  time  in 
question.  Especial  force  attaches  to  this  when  it  is  known  that  the 
respondent  Government  was  asked  and  urged  by  the  representatives 
of  the  French  company  and  by  the  representatives  of  the  claimant 
Government  to  permit  the  use  of  its  judicial  processes  and  functions, 
in  order  that  the  truth  might  be  established,  but  the  privilege  was 
denied  them. 

Hence  agr.inst  the  very  proper  presumption  that  the  Government  of 
Venezuela  will  f.lways  do  its  duty  by  its  own  nation:.  Is  end  by  its 
neutral  friends  resident  within  its  domain  mr.y  very  properly  be  placed 
the  presumption  which  arises  when  one  is  in  possession  of  important 
truths  essential  to  a  judiciid  inquiry  and  elects  not  to  produce  them. 

It  must  be  remembered  also  that  the  vilbge  of  S:nta  Barbara  was 
not  in  revolt.  It  was  a  loyal  community  temporarily  under  the  con- 
trol of  an  enemy — the  insurgent  forces.  Within  this  lo3^al  community 
were  the  shops  and  offices  of  a  neutral  company  and  the  residence  of 
the  superintendent,  also  a  neutral,  whose  conduct  in  Venezuela  had 
been  such  as  to  gain  and  hold  universal  esteem.  This  property  was 
then  distinguished  by  a  display  of  its  national  colors.  Both  the  com- 
munity and  the  compaii}^  were  the  friends,  not  the  enemies,  of  the  Gov- 
ernment and  were  both  entitled  to  receive  from  the  Government  the 
utmost  care  and  protection  not  inconsistent  with  the  retaking  of  the 
towTi  from  the  hands  of  the  revolutionary  forces  and  were  subject  only 
to  the  inevitable  contingencies  attending  such  an  undertaking. 

The  umpire  considers  that  in  fixing  responsibility  upon  the  respond- 
ent Government  he  walks  in  the  path  of  conscience,  prompted  by  the 
spirit  of  justice  and  sustained  by  principle,  by  publicists,  and  by 
precedent.  He  invites  the  courteous  attention  of  the  honorable  com- 
missioners to  the  authorities  and  precedents  which  follow. 


26  CASE    OF    HEIRS    OF   JULES    BRITN. 

•Ill  the  case  of  Terry  and  Angus  between  the  United  States  of  America 
and  Mexico,  Moore's  Arb.,  2995,  the  commissioners  found  that — 

So  far  as  the  evidence  discloses  he  had  done  nothin<î  which  could  be  constnied  into  a 
violation  of  the  neutralit)'  which  his  position  retiuircd.  The  destniction  of  the  property 
was  neither  incidental  nor  a  conserjuence  of  f  lie  nnlitary  operations  which  the  Mexican  forces 
adopte»!  to  recover  the  possession  of  the  city.  That  part  of  th(>  city  in  which  the  property 
was  located  was  wholly  in  the  possession  of  the  Mexican  troops,  and  it  does  not  appear  that 
its  destruction  could  in  any  manner  facilitate  their  efforts  to  dispossess  Colonel  Childs  of  the 
part  which  was  occupied  by  him. 

This  property  was  in  Puebla  in  Mexico,  wliich  cit}^  had  been  tîiken 
possession  of  by  the  ITnited  States  Army;  and  that  portion  of  the 
United  St.ites  Army  left  in  command  had  been  forced  b}^  the  Mexican 
army,  seeking  to  repossess  itself  of  the  city,  into  a  remote  part  of  the 
city  fron:  the  property  in  question,  and  the  property-  in  question  was 
wholly  within  the  zone  of  the  occupancy  of  the  Mexican  authorities. 
In  view  of  these  facts  the  commissioners  also  held  that — 

The  destiTJction  of  the  property  of  the  claimants,  under  these  circumstances,  in  the  opinion 
of  the  board,  constituted  a  valid  claim  for  indemnity  against  the  ^Icxican  Republic.  Moore's 
Arb.,  2995. 

See  the  case  of  Jaennaud  v.  United  States,  Moore's  Arb.,  3000,  where 
it  wí:s  held  that  the  damage  was  not  done  "  in  brittle  or  as  a  necessary 
and  lawful  military  act."  The  cotton  gin  in  which  the  cotton  was 
stored  which  wls  burned  "  had  not  furnished  a  shelter  from  wliich  the 
Confederi^tes  had  fired  or  might  thereafter  fire  upon  the  United 
States  forces." 

The  evidence  shows  that  the  burning  was  a  wanton  act  of  the  soldiers  in  the  excitement  of 
the  moment,  as  they  were  marehing  back  to  tlieir  camp  from  a  successful  battle  with  the  Con- 
federates. It  was  without  any  justifiable  excuse,  in  violation  of  order  and  discipline,  and 
committed  when  marching  back  to  camp  under  the  command  and  in  the  presence  of  their 
officers,  who  by  the  usual  and  ordinary  enforcement  of  military  discipline  might  and  could 
and  should  have  prevented  it,  but  who  do  not  appear  to  have  used  any  means  whatever  to 
prevent  it. 

In  such  a  case  we  think  that  an  allowance  should  be  made.     Moore's  lut.  Arb.,  3000-1. 

In  the  case  of  Alfred  Jeannotr.t  v.  Mexico  under  the  convention  of 
July  4,  1868,  Sir  Edward  Thornton,  umpire,  it  was  held  by  him  that 
since — 

the  mischief  is  unnecessaiy  and  wanton,  the  responsibility  must  be  accepted.  *  *  *  Jt 
does  not  api)ear  tiiat  without  the  arrival  of  the  military  force  which,  oufifit  to  have  protected 
the  peaceable  inhahitantu  of  the  toxcv,  there  would  have  been  any  inclination  to  conmiit  such 
acts  of  violence.  The  umpire  is  theicfore  of  opinion  that  compensation  is  due  to  the 
claimant  from  tlie  Mexican  Ciovernment.     Moore's  Int.  Aib.,  3673. 

S(>('  also  the  case  of  Edward  C.  Du  Bois  against  the  Government  oí 
Chile,  Moore's  Arb.,  3712-14. 

See  Turner's  ct:se,  Moore's  Arb.,  3684-5. 

See  Hollenbeck's  case,  Moore's  Arb.,  3716-17. 


OPINION    OF    UMPIRE.  27 

In  the  case  of  George  Pen  Johnston  v.  Mexico,  Moore's  Arb.,  3673, 
Sir  Edward  Thornton,  umpire,  held  : 

With  regard  to  the  damage  alleged  to  have  been  done  to  the  crops  of  cotton,  barley,  and 
oats  by  General  Corona's  forces  in  the  spring  of  186G,  the;  umpire  is  of  opinion  tliat  some 
damage  was  done,  but  not  to  tiie  extent  of  the  claim  made,  *  *  *;  that  as  the  defend- 
ants have  not  proved  that  tlie  requirements  of  war  rendered  that  damage  necessary,  it  must 
therefore  be  considered  to  have  been  unnecessaiy  :  and  that  therefore  the  claimants  are,  on 
account  of  tiiat  damage,  entitled  to  compensation. 

Distinctions,  however,  should  always  be  made  in  regard  to  tiie  character  of  the  people  in 
the  district  of  countrj'^  which  is  militarily  occupied  or  passed  over.  The  people  of  the  coun- 
try in  which  you  are  likely  to  operate  may  be  divided  into  three  classes:  First,  the  traly 
loyal,  who  neither  aid  nor  assist  the  rebels  except  on  compulsion,  but  who  favor  or  a.ssist  the 
Union  forces.  Where  it  can  possibly  be  avoided  this  class  of  persons  .should  not  be  .sub- 
jected to  military  requisitions  but  should  receive  the  protection  of  our  anm^. 

The  preceding  paragraph  is  taken  from  instructions  by  the  com- 
mander in  chief  of  the  armies  of  the  United  States  (Gen.  Henry  W. 
Hùlleck)  to  the  commanding  officer  in  Tennessee  under  date  of  March 
5,  1863.     Haheck's  Int  Law.  vol.  2,  page  56. 

The  military  commander  of  the  legitimate  government,  in  a  war  of  rebellion,  distinguishes 
between  the  loyal  citizen  in  the  revolted  portion  of  the  country  and  the  di.sloyal  citizen. 

Conmion  justice  and  plain  expediency  require  that  the  military  commander  protect  the 
manifestly  lo3'al  citizens,  in  revolted  territories,  against  the  hardships  of  the  war  as  much 
as  the  common  misfortune  of  all  war  admits. 

Instructions  for  the  government  of  armies  of  the  United  States  in 
the  field,  April  24,  1863.     Halleck's  Int.  Law,  55. 

Military  necessity,  as  understood  by  modern  civilized  nations,  consists  in  the  necessit}^  of 
those  measures  which  are  indispensable  for  securing  the  ends  of  the  war,  and  which  are  lawful 
according  to  the  modern  law  and  usages  of  war. 

Military  necessity  admits  of  all  direct  destruction  of  life  or  limb  of  armed  enemies,  and  of 
other  persons  whose  destruction  is  incidentally  unavoidable  in  the  armed  contests  of  the  war. 
lb.,  41,  par.  11-1.5. 

Even  in  bombardments  it  is  now  deemed  necessary  to  avoid  as  far 
as  possible  injuries  to  churches,  museums,  and  hospitals,  and  not  to 
direct  the  artillery  upon  the  quarter  inhabited  by  civilians,  unless  it  is 
impossible  to  avoid  them  while  firing  at  the  fortifications  and  military 
buildings. 

But  had  tlie  guns  of  the  besiegers  been  deliberately  turned  upon  the  dwelling  houses  of  the 
bombarded  town,  or  had  an  open  or  undefended  vilUage  been  fired  into,  the  persons  respon- 
sible for  such  proceedings  would  have  been  justly  accused  of  barbarity,  forbidden  by  modern 
usage.     Lawrence,  p.  344. 

In  further  support  of  the  finding  of  the  umpire  herein  he  cites 
RrJston,  umpire  in  the  Biajo  Cesarino  case,  Venezuelan  Arb.  of  1903, 
771.     He  also  cites  the  De  Lemos  case,  ib.,  303. 

The  honorable  commissioner  for  Venezuela  contends  that  this  case 
lacks  the  essential   prerequisite  of  a  claimant,  who,  being  a  French 


28  CASK  OF  HKIKS  OF  JULES  BRUN. 

citizen,  b}^  his  individual  action  brings  his  claim  before  the  commission, 
demandino:  a  stated  indenmification;  and  the  lionorablc  commissioner 
supports  liis  contention  by  quotinji  from  the  learned  opinion  of  Com- 
missioner Little  in  the  claiuLs  of  Xarcissa  de  Hammer  and  Amelia  de 
Brissot  l)efore  the  Ignited  States  and  Venezuelan  Commission,  found  in 
Moore's  Int.  Arb.,  2459-2460. 

In  the  case  cited  the  two  claimants  were  widows,  respectively,  of 
Captain  Hammer  and  Mr.  Brissot,  deceased,  and  upon  tlie  manner  of 
whose  killing  the  claims  arose.  The  widow  de  Hammer  and  the  widow 
de  Brissot  were  each  Venezuelan  born  and  of  Venezuelan  nationality 
until  married,  when  by  the  laws  of  both  countries  they  became 
American  citizens  and  remained  such  until  the  death  of  their  respective 
husbands,  when  they  reverted  to  their  original  Venezuelan  nationality 
and  were  Venezuelans  when  they  appeared  before  the  American- 
Venezuelan  commission  cLáming  compensation  of  Venezuela  for  the 
killing  of  their  respective  husbands.  It  was  under  these  conditions 
that  Commissioner  Little  gave  his  opinion  as  to  the  scope  of  the  pro- 
tocol constituting  that  commission,  and,  as  the  umpire  understands  it, 
these  two  cLJmants,  \\adows  as  aforesaid  and  Venezuelans,  were 
denied  place  before  that  commission,  because  they  were  Venezuelans 
and  not  Americans. 

The  difference  between  the  case  cited  and  the  case  before  the  umpire 
is  easily  seen.  The  cose  for  this  claim  exists  in  the  claim  of  Jules 
Brun,  which  occurred  before  May  23,  1899,  and  at  the  time  of  his 
death,  and  always  since,  the  claimant,  Mme.  Brun,  mother  of  the 
deceased,  has  been  a  French  citizen,  resident  of  France  and  entitled 
to  invoke  the  aid  of  France,  and  under  the  protocol  of  February  17, 
1902,  to  appear  before  the  tribunal  there  constituted  to  present  her 
claim.  That  she  has  now  actually  done  this,  although  in  an  informal 
way,  can  not  be  fairly  questioned.  She  will  be  estopped  from  any 
future  right  or  claim  against  the  respondent  Government  on  account 
of  the  death  of  her  son  as  fully  and  as  completely  as  though  she  had 
appeared  earlier  in  the  case,  and  the  respondent  Government  will  be 
protected  and  the  claimant  Government  barred  as  eil'ectually  in 
every  particidar  as  though  matters  had  proceeded  more  precisely  and 
more  formally. 

In  a  case  like  the  present,  where  the  judgment  of  the  umpire  is  the 
sole  arbiter  of  amounts,  the  facts  upon  which  his  judgment  is  to  be 
predicated  are  essential,  but  the  stated  indenmiiication  of  the  claim- 
ant is  not  especially  imj)ortant.  It  is  a  matter  of  regret  that  the 
umpire  knows  so  little  concerning  imj)ortant  matters  which  would 
have  greatly  aided  him  in  arriving  at  the  sum  to  be  assessed  as  dam- 
ages, and  he  may  easily  err  because  of  such  ignorance. 

He  is  of  the  ojjinion  that  he  has  jurisdiction  of  the  parties  and  of  the 
subject-matter  and  nuist  make  a  decision  ui)on  the  merits. 


OPINION    OF    UMPIRE.  29 

There  remains  to  be  determined  the  sum  to  be  assessed  against  the 
respondent  Government  because  of  this  unfortunate  incident,  and 
here  occurs  a  wide  divergence  of  views  between  the  lionorable  com- 
missioners. In  the  opinion  of  the  umpire  it  is  such  an  amount  as  will 
meet  the  pecuniary  loss  which  the  widowed  mother  has  sustained 
through  the  death  of  her  son.  This  is  not  the  sum  which  put  at 
interest  would  earn  an  amount  equal  to  his  annual  wage.  It  is  only 
her  fair  expectancy  in  his  wage  and  from  his  accumulations,  which,  had 
he  lived,  woidd  reach  her  from  year  to  year.  In  the  absence  of  all 
proof  that  he  had  accunudatcd  aught,  or  that  he  had  contributed 
anything  to  her  comfort  and  support,  there  is  for  the  umpire  no  rule 
of  action  but  to  assume  the  ordinary  conditions  as  to  accumulations 
and  the  ordinary  willingness  of  a  dutiful  son  to  (contribute  generously 
to  the  comfort  and  happiness  of  his  widowed  mother  in  her  declining 
years,  where  as  in  this  case  the  deceased  had  no  dependent  family. 
Her  age  is  not  stated,  but  to  be  the  mother  of  one  l)orn  forty-five 
years  since,  she  is  a  woman  near  ''threescore  years  and  ten"  and  her 
expectation  of  life  is  relatively  short. 

The  honorable  commissioner  for  P'rance  insists  with  nmch  learning 
and  ability  that  the  sum  which  would  otherwise  be  assessed  by  the 
umpire  in  this  case  must  be  augmented  by  the  difference  which  now 
exists  in  the  market  value  in  gold  of  the  Venezuelan  diplomatic  debt 
of  3  per  cent  which  is  the  method  of  payment  provided  in  the  protocol. 
This  proposition  is  seriously  opposed  and  with  marked  ability  by  the 
honorable  commissioner  for  Venezuela.  If  the  umpire  were  to  take 
the  advice  of  the  honorable  commissioner  for  France  in  assessing  this 
sum  he  must  hold  to  the  same  rule  where  the  amounts  due  are  capa- 
ble of  exact  ascertainment  and  in  his  award  augment  these  fixed  sums 
by  the  same  ratio  of  increase.  If  he  did  not  do  this,  he  might  cause 
serious  inequity,  by  inequality,  between  the  individual  claimants  now 
before  him  ;  and  if  he  did  do  this,  he  would  preserve  equity  by  equality, 
among  the  claimants  directly  before  him,  but  he  woidd  work  injustice 
and  inequity,  by  inequality,  to  every  other  holder  of  this  diplomatic 
debt.  He  would  reduce  still  lower  the  market  value  of  such  diplo- 
matic debt  to  the  manifest  loss  of  all,  and  it  would  not  be  impossible 
to  deprive  the  diplomatic  debt  of  all  value  if  each  lowering  rate  per 
cent  in  this  diplomatic  debt  of  .3  per  cent  was  followed  b}^  a  proj^or- 
tionately  increased  assessment.  Aside  from  the  apparent  unwisdom 
and  inequity  of  such  a  holding,  the  umpire  is  satisfied  that  he  is  not 
competent  under  the  protocol  to  do  other  than  to  ascertain  as  nearlv 
as  he  can  the  actual  sum  due  from  the  respondent  Government  in 
each  particular  case  and  to  award  that  particular  sum.  Under  the 
•protocol  it  is  not  for  him  to  determino  the  means  or  the  methods  (  f 
payment;  this  is  wholly  with  the  treaty-making  power  of  the  two 


30  CASE  Ob"  HEIRS  OF  JULES  BRUN. 

Governments,  and  it  has  been  settled  by  the  protocol  in  accordance 
with  their  high  judgment. 

It  follows,  therefore,  that  the  sum  to  be  assessed  and  awarded  in 
this  case  and  in  all  others  before  this  umpire  nmst  be  based  on  tiie 
damages  actually  sustained,  and  must  be  stated  without  reference  to 
the  way  or  market  value  of  the  means  of  provided  payment. 

In  his  best  judgment  the  sum  due  from  the  respondent  Govern- 
ment to  the  claimant  Government  for  the  benefit  of  Madame  Brun  is 
100,000  francs,  and  the  award  will  be  prepared  and  signed  for  that 
sum. 

NoRTHFiELD,  July  SI,  1905. 


CLAIM   OF  FRIERDICH  &  COMPANY.— NO.  2. 


HEAD  NOTES. 

The  hurdon  is  upon  the  company  to  es(al)lisli  clearly  niul  (Icfiiiitoly  that  fhc  respondent 
Government  proceeded  in  an  unlawful  luaiiiier  eonceriiinrc  the  hoat  of  said  cotnpatiy 
after  it  arrived  in  the  port  of  Giiiria. 

The  initial  wrong  was  all  with  the  claimant  company  (a)  in  the  engagement  of  an  ituonipe- 
tent  captain,  with  knowledge  of  his  incompetency,  (h)  in  the  taking  away  of  the  ship's 
papers  by  a  partner  of  the  company,  (c^  in  permitting  the  ship  thus  stripped  of  its  papers 
to  go  out  on  the  open  sea,  (d)  in  entering  the  harbor  of  Giiiria  under  t  hese  circumstances. 

The  arrival  of  this  ship  in  port  under  the  circumstances  attending  it  justified  suspicion  and 
examination  of  the  real  status  of  the  schooner  by  the  revenue  officers  of  the  port. 

The  schooner  was  not  in  the  port  of  Giiiria  through  any  imperious  necessitj^,  but  voluntaril}'. 
Such  compulsion  as  existed  was  through  the  act  or  neglect  of  a  member  of  the  company; 
and  its  unjustifiable  departure  from  the  Port  of  Spain,  its  journey  across  the  sea,  and 
its  entrance  to  the  harbor  of  Güiria  were  wholly  attributable  to  the  company  and  its 
agents. 

In  order  that  there  may  be  intervention  on  the  part  of  France,  there  must  be  a  legal  wrong 
on  the  part  of  Venezuela. 

If  Venezuela  conforms  with  its  own  laws  in  its  own  ports,  and  if  these  laws  are  such  as  are  the 
product  of  civilization,  then  there  is  no  error,  hence  no  responsibility  on  the  part  of 
Venezuela  and  no  right  of  intervention  on  the  part  of  the  claimant  Government. 

It  appears  that  Venezuela  acted  in  this  respect  through  its  regular  officers  and,  until  the  con- 
trary is  clearly  shown,  the  acts  of  these  officers  must  be  assumed  to  be  regular  and  proper. 

Such  a  presumption  of  regularity  and  propriety  is  a  proper  protection  of  the  public  and  its 
interests. 

Venezuela  is  also  entitled  to  that  presumption  of  good  faith  in  favor  of  its  public  officers 
which  ordinarily  attends  the  acts  of  public  officials. 

So  far  as  appears,  the  court  in  proceeding  to  condemn  the  schooner  to  pay  a  fine  was  acting 
within  its  jurisdiction  and  within  its  right,  and  until  the  contrarj^  appears  its  acts  will  be 
presumed  to  be  regular  and  its  judgment  righteous. 

The  laws  of  Venezuela  in  regard  to  such  matters  as  are  before  the  umpire  in  this  case  appear 
to  be  in  harmony  with  the  laws  of  other  civilized  countries. 

That  the  Government  at  Caracas  permitted  the  boat  to  be  returned  to  its  owners  without 
exaet-ing  payment  of  the  fine  is  not  an  admission  on  its  part  that  its  acts  in  reference  to 
the  schooner  had  been  irregular  and  unlawful. 

The  question  presented  here  is  one  of  detention  only,  and  the  detention  involves  oidy  the 
question  of  its  reasonableness  in  point  of  time.  Sufficient  time  to  know  all  the  facts, 
to  assemble  them  before  the  court,  and  for  the  court  to  act  upon  them  was  a  necessary 
adjunct  of  the  situation. 

OEXTR.\CT    FROM    THE   MINUTES    OF   THE    SITTING    OF   MAY    12,  1903. 

An  examination  of  the  claim  of  the  Orinoco  .\sphalt  Company,  amounting  to  176,080.10 
bolivars,  was  next  taken  up.  Doctor  Paúl  rejected  it  absolutely  as  without  foundation. 
M.  de  Peretti,  considering  the  schooner  belonging  to  the  company  had  been  illegally  detained 
at  Giiiria  for  thirty-four  days,  asks  therefor  an  indemnity  of  5,000  bolivars. 

Doctor  Paúl  does  not  recognize  the  illegality  of  the  measure  in  question.  The  arbitrators 
not  having  been  able  to  come  to  an  agreement,  this  claim  will  be  likewise  submitted  to  the 
jampire. 

31 


32  FRIERDICH    ¿i    CO.    CASE. 

OPINION  OF  THE  VENEZUELAN  COMMISSIONER. 

This  claim,  presented  to  the  minister  of  foreign  affairs  of  France  by 
Mr.  A.  Sanary,  who  styles  liimseh"  Hqiiidator  of  the  "Sociedad  Betunes 
del  Orinoco,"  is  destitute  of  all  documents  proving  the  juridic  person- 
ality of  such  company  or  the  capacity  of  him  who  calls  himself  its 
liquidator  as  its  trustee.  What  has  been  produced  is  a  contract 
entered  into  in  Paris,  on  the  2d  of  December,  1898,  by  which  Messrs. 
Ernesto  Nicolás  Frierdich  and  Tácito  Delort,  on  the  one  part,  and 
Messrs.  Courtant  Bergerault  and  A.  Cremer,  on  the  other,  agree  upon 
constituting  a  commercial  partnership  on  the  part  of  Frierdich  and 
Delort,  and  a  silent  partnership  on  the  part  of  Bergerault  and  Cremer, 
the  firm-name  of  which  was  to  be  "E.  Frierdich  &  Co."  Messrs. 
Frierdich  and  Delort  only  were  authorized  to  manage  and  sign  for  the 
company.  Besides,  the  fact  on  which  the  claim  is  based  is  only  the 
detention  sustained  by  the  schooner  Love  and  Lulu  in  the  harbor  of 
Güiria  during  thirt3-seven  days  on  account  of  a  confiscation  suit 
entered  against  her  before  the  finance  court  for  having  arrived  at  that 
port  without  a  matricula  or  register  and  other  papers  concerning  her 
correct  clearing,  and  in  wliich  suit  she  w^as  condemned  to  pay  a  fine, 
she  being  released  a"terwards  at  the  instance  of  the  consul  of  Holland 
in  Port  of  Spain,  who  claimed  the  preferential  payment  of  debts  con- 
tracted in  said  island,  for  wiiich  she  was  sold  to  the  highest  bidder 
there. 

As  is  seen  from  the  simple  statement  of  these  events,  there  exists  no 
ground  to  demand  an  indemnity  for  the  consequences  of  a  suit  brought 
in  conformity  with  the  laws  on  the  matter,  it  being  observed  that  it 
was  Delort  himsel'  who  denounced  to  the  authorities  at  Guiria  the 
want  of  papers  of  the  schooner,  alleging  that  they  had  been  violently 
taken  from  the  captain  by  his  (Delort's)  associate,  Frierdich,  when 
the  vessel  was  leaving  the  island  of  Trinidad. 

For  the  reasons  expressed  the  arbitrator  disallows  the  claim  pre- 
sented. 

Caracas,  May  12,  1903. 


OPINION  OF  THE  FRENCH  COMMISSIONER. 

The  liquidator  of  the  French  Society  Frierdich  &  Co.,  known  also 
by  the  name  of  the  Orinoco  Asphalt  Society,  claims  of  the  Venezue- 
lan Government  an  indemnity  of  176,030.10  bolivars,  because  the 
latter  having  retained  illegally  in  the  port  of  Güiria  the  schooner  of 
this  society  for  thirty-nine  days  should  be  responsible  for  the  complete 
ruin  of  the  concern.  The  information  which  1  have  gathered  at 
Trinidad  and  in  Venezuela  about  this  company  has  convinced  me 
that  the  condition  in  which  it  operated  did  not  bring  nl>out  such  n 
serious  result.     At  the  moment  when  the  accident  happened  which 


OPINION    OF    FRENCH    COMMISSIONER.  33 

incited  the  claim  it  was  already  in  insolvency.  We  can  not  argue, 
then,  that  the  intervention  of  the  Venezuelan  administration,  stop- 
ping the  affairs  of  the  company,  obliged  it  to  abandon  its  operation. 
If  the  Love  and  Lulu  had  not  been  detained  at  Giiiria  and 
could  have  been  able  freely  to  pursue  her  voyage,  the  fate  of  the 
enterprise  would  not  have  been  changed.  However,  it  seems  to  me 
that  the  administration  of  the  custom-house  of  Giiiria  committed 
an  abuse  of  power  in  retaining  for  more  than  a  month,  without  reason, 
the  schooner  Love  and  Lulu,  and  I  consider  that  the  damage  caused  the 
owners  of  a  boat  of  its  towage  by  its  lying  idle  for  more  than  a  month 
should  be  compensated  by  the  granting  of  an  indemnity  of  5,000 
bolivars.  In  fact,  the  nominal  owner  of  the  schooner,  Mr.  Tacite 
Delort,  silent  partner  of  the  firm  Frierdich  &  Co.,  was  on  board  at  the 
arrival  of  the  boat  at  Giiiria,  and  he  himself  implored  the  aid  of  the 
authorities  of  the  port  against  the  insubordinate  crew.  The  absence 
of  navigation  papers  was  due  to  a  case  oí  force  majeure  (superior  force) 
analogous  to  those  which  the  Venezuelan  law  anticipated  ;  the  papers 
in  question  were  besides  delivered  as  soon  as  possible  ;  and  finally,  the 
rigorous  measure,  the  forfeiture  and  sale  of  the  boat,  ordered  by  the 
tribunal  of  Giiiria,  were  carried  out  upon  the  order  coming  from 
Caracas.  I  have  not  taken  into  account  a  letter  which  Mr.  Frierdich 
addressed  to  me  the  28th  of  April,  1903,  to  request  me  to  withdraw 
the  claim  presented  under  the  firm-name  of  Frierdich  &  Co.,  because 
it  was  not  Mr.  Frierdich  who  presented  this  claim,  but  the  liquidator 
of  the  compan}^  Mr.  Frierdich,  resident  in  Venezuela,  an  insolvent, 
it  appears,  was  on  bad  terms  with  his  former  partner,  to  whom  he  was 
indebted  for  quite  a  large  sum.  This  situation  and  also,  without 
doubt,  the  fear  of  displeasing  the  authorities  of  a  country  where  he 
has  definitoly  established  his  residence,  and  where  he  has  married, 
explains  sufficiently  the  proceeding  of  Mr.  Frierdich.  In  these  con- 
ditions, this  proceeding  (the  sending  of  the  letter)  could  not  be  taken 
into  consideration.  The  indemnity  of  5,000  bolivars,  which  I  believe 
equitable,  would  be,  it  is  necessary  to  note,  diminished  by  more  than 
half  by  the  fact  of  payments  in  bonds  of  the  diplomatic  debt,  accepted 
by  the  French  Government,  to  the  end  of  permitting  the  Venezuelan 
Government  to  pay  its  debts  more  easily, 
Paris,  August  26,  1904. 

ADDITIONAIi  OPINION  OF  THE  VENEZUELAN  COMMISSIONER. 

As  stated  in  my  opinion  preceding  this  additional  opinion  the 
detention  of  the  schooner  Love  and  Lulu  hj  the  authorities  of  the 
port  of  Giiiria  and  the  subsequent  legal  action  thereon  was  due,  as 
shown  by  the  documents  submitted,  to  the  fact  that  said  schooner 
arrived  in  the  above-mentioned  port  without  her  register  and  other 
S.  Doc.  53:3,  59-1 3 


34  FKIERDICH    ¿c    CO.    CASE. 

papers  which  the  laws  of  Venezuela  require  from  vessels  coming  into  a 
Venezuelan  port  from  foreign  ports.  Only  in  case  of  sho^^^ng  ])roof 
that  the  arrival  of  said  áchooner  at  the  port  under  said  conditions 
was  due  to  any  of  the  unforeseen  circumstances  specified  by  law, 
could  the  schooner  Love  and  Lulu  be  exempted  from  the  penalty 
imposed  by  article  48  of  the  "Código  de  Hacienda"  (Code  of  Fiscal 
Laws)  of  Venezuela  then  in  force.  The  detention  of  the  schooner 
lasted  the  time  necessary  for  the  investigation  of  the  facts  and  the 
hearing  of  the  testimony  of  her  owner,  whose  defense  was  the  allega- 
tion that  the  papers  had  been  violently  snatched  from  him  in  Trini- 
dad by  his  partner,  Mr.  E.  Frierdich,  and  that  the  schooner  had 
sailed  by  order  of  the  master  and  crew  who  did  not  obe}^  his  (the  own- 
er's) determination  to  discontinue  the  trip. 

It  is  moreover  shown  by  the  same  documents  (see  note  of  the  con- 
sul for  the  Netherlands  in  Port  of  Spain,  dated  March  1,  1901,  to  the 
minister  of  the  Netherlands  in  London)  that  the  schooner  Love  and 
Lulu  returned  sometime  afterwards  to  Port  of  Spain,  where  she  was 
embargoed  and  sold  under  the  hammer  by  the  courts  of  the  island, 
for  the  payment  of  the  workingmen  and  other  creditors.  It  is  also 
shown  b}^  another  communication  bearing  the  signature  of  the  con- 
sular agent  for  the  Netherlands,  under  date  of  May  29,  1899,  to  F.  A. 
Thompson,  register,  that  on  that  date,  a  few  days  later  than  the  17th 
of  May  of  the  same  3^ear,  when  the  schooner  was  released  bj'  the  courts 
of  Güiria,  she  had  been  already  condemned  by  the  courts  of  Port  of 
Spain,  and  that  it  was  on  May  29,  1899,  that  the  public  sale  was  to 
take  place. 

The  register  was  not  the  only  document  lacking  the  schooner  when 
she  came  into  the  port  of  Güiria.  As  shown  by  the  note  of  the  consul 
for  the  Netherlands,  under  date  March  1,  1901,  airead}'  quoted, 
Frierdich,  Delort's  partner,  also  took  in  Trinidad  from  the  master  of 
the  Love  and  Lulu  the  permit  or  clearance  issued  by  the  Venezuelan 
consul  enabling  the  schooner  to  go  into  Venezuelan  ports,  the  certili- 
cate  issued  by  the  same  official  showing  that  the  ship  had  complied 
with  all  the  requirements,  and  other  papers. 

Article  48  of  the  Fiscal  Code  (Código  de  Hacienda)  then  in  force  in 
Venezuela  provides  that  should  only  the  register  be  missing,  then 
such  measures  as  are  provided  by  law  shall  be  taken  on  board  of  the 
vessel,  *  *  *  and  the  fine  of  5,000  bolivars  shall  not  be  levied 
and  collected,  nor  shall  the  bond  be  demanded  when  the  master  ean 
prove  that  the  lack  of  the  register  is  due  to  an  accident  which  he 
could  neither  prevent  nor  foresee,  such  as  shipwreck ,  fire ,  or  v-iolence 
from  an  enemy  or  pirates.'^ 

a  Art.  48.  Cuando  el  buque  traiga  cl  sobordo  y  sus  demás  papeles  despachados  en  forma 
por  el  Cónsul  de  la  procedencia,  y  sólo  le  falte  la  patente  de  navcfíaciiín,  se  tomarán  á  su 
bordo  las  precauciones  prevenidas  en  el  artículo  anterior,  y  además  de  imponerse  al  Capi- 


ADDITIONAL    OPINION    OF    VENEZUELAN    COMMISSIONER.         35 

In  the  case  of  the  schooner  Love  and  Lulu,  which  came  inider  the 
authorities  of  Güiria,  upon  whom  devolved  the  (hit y  of  strictly  com- 
])hàni;  with  the  law,  the  master  did  not  suiTer  violence  from  enemies 
or  pirates,  but  it  was  Mr.  Frierdich  himself,  the  i)artner  of  the  plain- 
tiff, Tácito  Delort,  who  took  the  schooner's  papers,  and  it  was  the 
master,  Luis  Rodriguez,  who  of  his  own  accord  resolved  to  sail  with- 
out the  indispensable  documents  which  he  left  behind  at  the  port 
whence   he   sailed. 

Article  194  of  the  same  code  provides  that  the  sliip's  master  is 
guilty  of  an  offense  and  is  liable  to  a  fine  of  10,000  bolivars  and 
other  stated  penalties  whenever  he  does  not  produce  the  other  docu- 
ments, if  during  the  trial,  as  pro\àded,  he  fails  to  show  that  the  absence 
of  such  documents  is  due  to  any  of  the  iniforeseen  circumstances 
set  forth  in  section  2  of  article  48."  It  was  not  shown,  nor  was  any 
endeavor  whatever  made  to  show  at  the  trial  of  the  schooner  Love 
and  Lulu  that  the  absence  of  the  other  papers  was  due  to  unforeseen 
circumstances  of  shipwreck,  fire,  or  under  duress  from  enemies  or 
pirates.  On  the  contrary,  the  proofs  then  adduced  show  the  party 
responsible  for  the  absence  of  the  ship's  papers  to  be  a  partner  of  Mr. 
Delort. 

The  Venezuelan  courts  by  virtue  of  their  rightful  and  well-estab- 
lished jurisdiction  and  in  conformity  ^dth  the  laws  under  which  they 
are  established  were  authorized  and  under  obligation  to  bring  an 
action  against  the  schooner  Love  and  Lulu  to  hold  her  and  to  compel 
the  settlement  of  the  liability  incurred  b}-  her  master  for  gross  offenses 
(faltas  graves)  expressly  defined  and  punished  by  the  Venezuelan  laws. 

From  the  above  statement  of  the  facts  it  appears  that  it  was  through 
the  fault  of  the  claimant,  Mr.  Delort,  and  tlu-ough  the  fault  of  the 
master  in  command  of  the  schooner  Love  and  Lulu,  and  the  fault  of 
^Ir.  Delort's  partner,  Mr.  E.  Frierdich,  that  the  schooner  in  question 
was  subjected  to   legal  proceedings  before  the  fiscal  court  (tribunal 

tan  la  multa  del  artículo  194,  número  1°,  se  le  exigirá  una  fianza  de  cinco  mil  bolívares,  si 
el  buque  fuere  de  vela,  ó  de  diez  mil  si  fuere  de  vapor,  otorgada  por  él  y  por  dos  comerci- 
antes abonados,  á  satisfacción  del  Administrador,  Ja  cual  se  hará  efectiva  en  el  caso  de  que 
el  buque  salga  del  puerto  sin  permiso  de  la  Aduana,  y  de  la  autoridad  política  respectiva, 
sin  perjuicio  de  las  demás  penas  á  que  haya  lugar. 

No  se  impondrá  la  multa  ni  se  exijirá  la  fianza  cuando  compruebe  el  Capitán  que  la 
falta  de  la  patente  provino  de  un  accidente  que  no  pudo  prever  ni  evitar,  como  naufragio, 
incendio  á  violencia  perpetrada  por  enemigos  ó  piratus.  En  este  caso  se  dará  cuenta  al 
Ministerio  de  Hacienda  con  todos  los  ponnenores. 

«Art.  194.  El  Capitán  de  un  buque  incurre  en  falta  y  paga  multa  en  los  casos 
siguientes: 

1".  Cuando  no  presente  la  patente  de  navegación,  pagará  de  cuatro  mil  á  cinco  mil 
bolívares  en  el  caso  del  artículo  48;  doblándose  esta  nmlta  y  haciéndose  efectivas  !as 
demás  penas  á  que  haya  lugar  por  la  no  presentación  de  los  otros  documentos,  en  el  caso 
del  aitículo  47,  si  en  el  juicio  respectivo  no  comprueba  el  Capitán  que  la  falta  proviene  de 
alaguno  de  los  accidentes  fortuitos  previstos  en  el  inciso  2"  del  artículo  48. 


36  FRIERDTOH    ¿¿    CO.   CASE.      . 

de  hacienda)  of  the  port  of  Giiiria,  and  to  })e  held  and  condemned 
in  conformity  with  the  laws  in  the  premises.  It  is  to  his  ovm  acts  or 
neo;lii]:ence,  to  say  the  least,  that  the  claimant  owes,  either  directly  or 
indirectly,  the  grievances  or  injury  he  complains  of,  if  he  ever  did 
suffer  any  grievance  or  injury. 

I  beg  to  submit,  together  %vith  tliis  opinion,  a  letter  duly  authenti- 
cated, which  was  sent  to  Caracas  to  me  in  my  capacity  of  com- 
missioner, by  Mr.  E.  Frierdich,  a  partner  of  the  plaintiff,  of  the 
firm  of  Frierdich  &  Co.,  in  liquidation,  which  letter  shows,  as  does 
also  the  letter  which  the  same  ^Ir.  Frierdich  sent  my  learned  col- 
league, that  he  has  authorized  no  one  to  enter  a  claim  against  the 
Venezuelan  Government  by  reason  of  the  seizure  of  the  schooner  Love 
and  Lulu,  and  that  he  does  not  consider  that  the  authorities  of  the 
port  of  Giiiria  have  given  any  cause  in  the  present  case  to  enter  any 
claim  whatever. 

I  beg  to  differ  completely  from  the  learned  commissioner  of 
France's  opinion,  that  the  letter  in  question  must  not  be  taken  into 
consideration  by  reason  of  certain  personal  facts  connected  Nnth  the 
writer  thereof,  such  as  his  being  insolvent  with  his  partners,  and  a  resi- 
dent of  Venezuela  married  in  the  same  country,  and  to  be  acting  under 
fear  of  offending  the  authorities  of  the  country  where  he  resides. 
The  contention  that  he  is  insolvent  with  his  partners  and  the  facts  of 
his  having  his  residence  in  Venezuela  and  having  married  a  Vene- 
zuelan are  not,  in  mj  opinion,  of  sufficient  weight  to  destroy  the  testi- 
mony of  a  person  bound  no  less  than  by  the  ties  of  business  associa- 
tion to  the  claimant,  who  makes  use  of  the  name  of  the  ih-m  to  enter 
the  claim  in  question.  As  regards  the  charge  of  fear,  so  far  no  proofs 
have  been  offered  to  show  the  fact  that  Mr.  Frierdich  is  susceptible 
to  such  fear  nor  that  he  is  actually  laboring  under  it. 

In  \'iew  of  the  foregoing,  I  come  to  a  close  supporting  my  opinion 
that  the  claim  of  the  j)artnersliip  F'rierdich  &  Co.,  in  liquidation, 
named  "Société  des  Bitumes  de  l'Orénoque,''  has  no  grounds  what- 
ever and  that  under  the  circumstances  it  should  be  disallowed.  And 
I  beg  the  honorable  umpire  to  gnintmy  request. 

NoRTHFiELD,  Vt.,  February  1,  1905. 


ADDITIONAL.  OPINION  OF  THE  FRENCH  COMMISSIONER. 

The  reading  of  the  additional  memoir  of  my  honorable  colleague  has 
not  c-hanged  my  ojjinion  on  the  two  single  points  which  I  have  thought 
I  ought  to  mention  in  the  above  memoir  and  upon  which  T  am  not  in 
agreement  with  Doctor  Paul.  In  the  (¡rst  place,  it  seems  to  me 
evident  that  the  society  of  Fi'ierdich  &  Co.  ])eing  in  insolvency  it  per- 
tains to  the  üípiidator,  Mr.  Senary,  whose  powers  to  rei)resent  the 
aforesaid  society  are  contained  in  the  dossier. 


ADDITIONAL    OPINION    OF    B^RENCH    COMMISSIONER.  37 

Mr.  Frierdich,  insolvent  debtor  of  his  associates,  proves  by  his  pro- 
ceedings that,  not  content  with  not  paying  his  debts,  he  still  tries  to 
injure  his  creditors  by  ])reventing  them  from  getting  the  benefit  of  an 
eventual  indemnity.  I  am  not  called  uj)on  to  consider  this  manner 
of  action.  I  am  content  to  refuse  to  Mr.  Frierdich  the  right  which  he 
arrogates  to  himself  of  speaking  in  the  name  of  a  company  at  present 
in  insolvency  of  which  he  is  only  the  debtor.  Consequently  I  think 
the  arbitrators  have  to  take  no  account  of  his  letters. 

In  the  second  place,  I  consider  that  the  custom-house  of  Güiria  has 
caused,  by  retaining  for  thirty-nine  days  without  reason  the  schooner 
Love  and  Lulu,  an  injury  to  her  owners,  whatever  might  have  been  the 
condition  of  the  latter  at  that  moment,  a  situation  as  to  which  I  share, 
besides  the  opinion  of  my  colleague.  In  fact,  either  the  custom-house 
of  Güiria  proceeded  according  to  the  Venezuelan  law  in  retaining 
this  vessel  and  then  should  have  inflicted  the  penalty  ])rovided  by 
law,  and  in  case  of  nonpayment  should  have  proceeded  to  sell  accord- 
ing to  law,  or  indeed  the  law  did  not  authorize  the  retention  of  this 
vessel  after  the  delivery  of  the  papers  on  board,  and  then  it  ought 
to  have  delivered  her  immediately  to  Mr.  Delort.  But  it  stopped 
the  procedure  entered  upon,  which  seems  to  indicate  that  it  had  no 
longer  a  legal  right  to  prosecute,  but  it  continued  to  retain  the  boat, 
wliich  it  did  not  sufficiently  protect  against  depredations  and  which 
it  only  surrendered  thirty-nine  days  after  the  seizure. 

I  maintain,  then,  that  the  custom-house  of  Güiria  committed  an 
error;  that  this  error  entailed  an  injury  upon  the  partnership  of  Frier- 
dich &  Co.  in  depriving  it  for  more  than  a  month  of  the  use  of  this 
schooner,  and  that  this  injury  would  be  equitably  compensated  by  an 
mdemnity  of  5,000  bolivars. 

NoRTiiFiELD,  February  3,  1905. 


OPINION  OF  THE  UMPIRE. 

The  claimant  company  was  organized  in  France  and  has  unques- 
tioned French  nationality. 

Tacite  Delort  and  Ernesto  Nicolás  Frierdich  are  the  active  partners 
and  managers  of  the  company,  and  two  other  French  gentlemen  are 
silent  partners. 

The  business  of  the  company  consisted  of  mining,  refining,  export- 
ing, and  marketing  the  products  of  a  certain  asphalt  mine  situated  at 
Pedernales  in  Venezuela,  about  70  miles  from  Port  of  Spain,  Trinidad. 

The  company  entered  upon  this  business  in  1898,  and  to  aid  in  the 
importation  of  materials  and  men  for  the  works  and  in  the  exportation 
of  the  asphalt  to  Port  of  Spain  the  company  bought  a  schooner,  Love 
and  Lulu,  which  at  the  time  of  its  purchase  and  thereafter  ward  s  was  of 
Dutch  nationality.     It  was  registered  in  the  name  of  Tacite  Delort. 


38  FRIERDICH    &    CO.   CASE. 

Owing:  to  the  character  of  the  channel  through  which  Pedernales 
was  approached,  it  was  necessary  that  the  boat  be  of  a  peculiar  build, 
which  necessity  was  fully  met  by  the  Love  and  Lulu.  Its  purchase 
price  was  $2,100. 

From  the  commencement  of  work  at  the  mines  to  April  8,  1899,  the 
company  had  exported  and  sold  about  800  tons  of  asphalt. 

On  the  date  last  named  the  Lo\'e  and  Lulu  was  in  the  harbor  of  Port 
of  Spain  and  Mr.  Delort  and  Mr.  Frierdich  were  in  the  city  of  Port  of 
Spain. 

One  Luis  Rodrig^uez  had  been  engaged  as  captain  of  the  boat.  This 
man  could  neither  read  nor  A\TÍte,  had  been  previously  a  river  pilot, 
did  not  understand  the  laws  attending  navigation,  and  objected  to  the 
service  at  the  time  of  the  engagement,  because  of  liis  ignorance  and  of 
his  fear  that  he  would  commit  some  blunder  in  the  office.  Notwith- 
standing the  knowledge  of  the  company  of  this  ignorance  he  w;.s  made 
captain. 

On  said  Sth  of  June,  1899,  Mr.  Delort  learned  that  the  schooner  had 
received  its  clearance  papers  and  was  about  to  sail  for  Giiiria.  He 
desired  to  go  with  the  boat  when  it  sailed,  but  did  not  desire  to  go 
then.  lie  undertook  to  detain  the  boat  and  obtained  an  order  from 
the  Dutch  consul  to  the  captain,  directing  him  not  to  go.  He  was 
taken  to  the  schooner  and  gave  the  captain  the  order  of  the  Dutch 
consul;  but  the  captain  refused  to  recognize  the  authority  of  the  consul 
and  upon  being  ordered  by  Mr.  Delort  not  to  sail,  the  captain  reñised 
to  recognize  Mr.  Delort's  authority  and  proceeded  to  prepare  to  s.:il. 
It  was  about  this  time  that  Mr.  Frierdich,  the  other  manager,  c^me  to 
the  schooner  in  a  small  boat  and  demanded  of  the  captuin,  and 
received  from  him,  all  of  the  ship's  papers.  Mr.  Delort  attempted  to 
prevent  their  delivery  to  Mr.  Frierdich  by  personal  intervention  and 
the  use  of  some  violence,  but  the  captain  overcame  Mr.  Delort's 
resistance  and  delivered  the  ship's  papers  to  Mr.  Frierdich,  í:s  above 
stated.  Xotwitlistanding  that  he  had  no  papers  permitthig  him  to 
sail  and  against  the  continuing  and  earnest  protest  of  Mr.  Delort,  and 
with  him  on  board,  the  captain  set  sail  for  Giiiria,  which  ])ort  he  reached 
some  time  that  day. 

Immediately  upon  the  arrival  of  the  schooner  at  Giiiria  Mr.  Delort 
informed  the  harbor  master  of  that  port  of  the  condition  of  affairs,  and 
on  the  next  morning  he  made  jirotest  before  the  vice-consul  of  Spain 
at  Giiiria,  and  at  the  request  of  Mr.  Delort  the  testimony  of  the  cap- 
tain and  of  the  steward  was  taken. 

Some  time  after  April  11  Mr.  Frierdich  surrendered  the  ship's  papers 
to  the  Dutch  consul  at  Port  of  vSpain  and  they  were  forwarded  by 
special  messenger  to  Giiiria,  reaching  there  about  the  14th  day  of 
April,  on  which  day  they  were  brought  to  the  attention  of  the  cusloins 
officers  of  that  ])()rt,  and  there  behig  no  Dutch  consul  nt  Giiiria  the 


OPINION    OF    UMPIRE.  39 

vice-consul  of  Spain,  as  the  officer  of  a  friendly  nation,  on  the  same 
day  at  the  request  of  Mr.  Delort  visited  the  customs  officials  at  Güiria 
and  solicited  of  them  and  also  of  the  captain  of  the  j^ort  that  the  Love 
and  Lulu  be  turned  over  to  Mr.  Delort.  A  formal  refusal  was  made  by 
these  officers. 

On  April  17  the  papers  had  been  sent  back  to  the  Dutch  consul  at 
Port  of  Spain  and  he  presented  them  to  the  Venezuelan  consul  of  that 
port  and  formally  asked  the  release  of  the  Love  and  I^ulu  at  Güiria. 

Proceedings  were  instituted  against  the  Love  and  Lulu  before  the 
proper  tribunal  at  Güiria  under  articles  48  and  144  of  the  Maritime 
Code  of  Venezuela.  A  fine  of  5,000  bolivars  was  duly  imposed  by  the 
court  and  due  notice  was  given  of  the  sale  of  the  schooner  for  the 
recovery  of  the  fine. 

Frierdich  &  Co.  had  no  other  boat  than  the  Love  and  Lulu  and  not 
being  able  to  obtain  one  at  Port  of  Spain  suited  to  the  channel  of 
Pedernales  they  could  not  transport  supplies  to  the  works  or  bring  out 
the  products  of  the  mines,  and,  as  a  result,  the  asphalt  works  were 
abandoned  and  the  workmen  taken  back  to  Port  of  Spain.  The  com- 
pany had  no  means  to  pay  the  workmen  for  their  labor  or  to  answer 
the  demands  of  their  other  creditors,  and  possession  was  taken  by 
these  creditors  of  such  property  of  the  company  as  they  could  find  in 
order  to  secure  their  pay. 

Pending  the  sale  of  the  schooner  at  Güiria,  the  Dutch  consul  at  Port 
of  Spain  asserted  to  the  customs  authorities  at  Guiria  a  prior  and 
superior  lien  upon  the  schooner  and  demanded  its  return  to  Port  of 
Spain  to  answer  to  this  lien.  It  resulted  that  the  Government  of 
Venezuela,  recognizing  the  validity  of  this  claim,  directed  the  return 
of  the  Love  and  Lulu  to  Port  of  Spain,  and  the  schooner  arrived  there 
May  17.  The  fuie  has  been  in  no  part  paid.  No  appeal  was  taken 
from  the  action  of  the  tribunal  imposing  this  fine,  and  it  remains  a 
final  and  unsatisfied  judgment. 

On  the  arrival  of  the  Love  and  TjuIu  at  Port  of  Spain  it  was  seized 
under  process  issuing  from  the  court  of  Port  of  Spain  and  was  sold  at 
public  auction  under  such  process.  Before  the  sale,  however,  due 
notice  was  given  by  the  Dutch  consul  to  the  proper  parties  in  charge  of 
the  sale  of  the  superior  lien  of  his  consulate,  and  he  demanded  pay- 
ment of  this  amount  before  the  purchaser  could  take  possession  of  the 
schooner. 

Later,  proceedings  in  li([uidation  were  instituted  at  Havre,  France, 
and  Mr.  A.  Sanary  was  constituted  liquidator,  and  it  is  on  his  behalf, 
at  his  initiative,  and  for  the  benefit  of  the  insolvent  company  and  its 
creditors  as  such  li(|uidator,  that  this  claim  is  here  presented. 

Mr.  Frierdich  has  filed  with  both  of  the  honorable  commissioners  a 
protest  against  this  claim,  denying  that  there  was  any  fault  on  the  part 
of  the  authorities  at  Güiria  at  the  time  in  question,  or  that  any  respon- 


40  FRIERDICH    6¿    CO.   CASE. 

sibility  attaches  to  Venezuela  on  account  of  what  happened  in  con- 
nection willi  this  schooner. 

Quite  a  large  sum  of  money  is  claimed  by  the  comi)any  of  \'enezuela 
on  account  of  its  alleged  fault,  but  in  the  opinion  of  the  honorable 
commissioner  for  France  there  is  a  just  claim  for  5,000  bolivars  only. 
He  does  not  ascribe  the  insolvency  of  the  company  to  the  detention  of 
the  schooner  at  Güiria,  and  he  limits  his  award  t(i  a  sum  which  he 
regards  as  not  excessive  for  the  abuse  of  i)owcr  which  he  hol-ds  was 
committed  by  the  administrators  of  the  custom-house  at  Güiria  and 
through  the  action  of  the  court  in  detaining  the  schooner  for  the  time 
stated,  which  detention  he  considers  unreasona])lo. 

The  honorable  commissioner  for  Venezuela  sees  no  error  in  the 
action  of  the  Venezuelan  authorities  and  refuses  any  compensation. 

The  honorable  commissioners  having  failed  to  agree,  they  join  in 
sending  the  claim  to  the  umpire  for  his  decision.  They  have  rendered 
the  umpire  very  efTicient  aid  in  their  opinions,  original  and  supple- 
mentary, and  by  their  courteous  answers  to  his  interrogatories. 

If  the  company  has  a  right  to  claim  anything  of  Venezuela,  it  is  the 
loss  of  use  of  the  schooner  by  its  detention  a  certain  length  of  time 
in  the  port  of  Güiria.  This  right  of  use  or  the  rental  value  of  the 
schooner  can  not  be  very  large,  since  the  value  of  the  schooner  as  deter- 
mined by  its  selling  price  was  only  $2,100.  In  order  that  the  company 
should  have  a  claim  upon  Venezuela,  the  burden  is  upon  it  to  estab- 
lish clearly  and  definitely  that  the  respondent  Government  has  pro- 
ceeded in  an  unla\vful  manner  concerning  said  boat  since  it  amved  in 
that  port  on  the  8th  of  April,  1899.  A  detention  without  reason  is 
suggested,  but  certainly  some  detention  was  not  only  reasonable  but 
necessary.  It  was  at  least  six  days  before  its  papers  arrived  from 
Port  of  Spain  which  would  permit  the  company  to  justify  in  any  way 
the  right  of  the  schooner  to  be  upon  the  seas  or  in  this  ])ort  of  \'cne- 
zuela.  The  spirit  with  which  this  claim  is  pressed  by  the  company  is 
manifest  from  the  fact  that  the  claim  for  detention  covers  the  entire 
thirty-nine  days  which  elapsed  from  the  time  the  schooner  sailed  from 
Port  of  Spain  and  the  day  of  its  return  to  that  port.  This  is  so  mani- 
festly wrong  that  it  raises  a  suggestion  of  insincerity  on  the  part  of  the 
claimant  which  must  necessarily  affect  the  value  of  the  company's 
assertions  in  other  particulars. 

The  initial  wrong  was  all  with  the  claimant  company.  It  began 
in  the  reckless  and  ill-advised  engagement  of  a  caj)tain  entirely 
unfitted  for  his  place,  of  which  unfitness  they  were  advised  by  the 
captain  himself.  It  continued  in  the  serious  cpiarrel  which  had  .some 
time  developed  between  the  two  managers  of  the  company  ami,  so  far 
as  this  case  is  concerned,  first  manifested  itself  in  the  open  rupture  at 
the  schixmer's  .side  at  Port  of  Sj)ain  on  A])ril  (>,  when  the  ('ai)tain, 
apparently  through  the  advice  and  a})i)roval  of  one  of  the  managers, 


OPINION    OF    UMPIRE.  41 

openly  defied  the  other,  and  where  one  of  its  managers  was  wilHng  to 
see  the  schooner  leave  the  port  stripped  of  every  essential  paper  to 
protect  itself  upon  the  seas,  to  become  a  floating  derelict  without 
right,  opposed  to  the  laws  of  all  civilized  nations  and  open  to  capture 
and  condenmation  without  recourse  or  remedy.  It  was  concluded 
when  this  same  captain,  ignorantly  riding  over  the  laws  of  ever^^  sea 
and  the  laws  of  every  civilized  port,  sailed  into  the  harbor  of  Güiria. 
The  statements  of  Mr.  Delort,  made  to  the  harbor  master  of  the  port 
and  to  the  customs  oííicials  and  before  the  consul  of  Spain,  supported 
as  they  were  in  great  part  by  the  captain  and  whilom  steward,  were  so 
improbable  as  to  stagger  belief  and  might  well  awaken  just  suspicions 
in  the  breast  of  the  revenue  officers  of  that  i)ort  concerning  the  real 
status  of  the  schooner. 

Article  -IS  of  the  Fiscal  Code  then  in  force  in  Venezuela  was  : 

Should  OTily  the  register  be  missing,  then  such  measures  as  are  provided  in  law  shall  be 
taken  on  board  the  vessel,  *  *  *  ¡^^i^d  tjjc  fj^g  of  5,000  bolivars  sluill  not  be  levied 
and  collected,  nor  shall  the  bond  be  demanded  when  the  master  can  prove  that  tbe  lack  of 
the  register  is  due  to  an  accident  which  he  could  neither  prevent  nor  foresee,  such  as  ship- 
wreck, fire,  or  violence  from  an  enemy  or  pirates.  « 

But  more  than  the  register  was  lacking.  The  clearance  issued  by 
the  consul  of  Venezuela  at  Port  of  Spain  was  lacking.  There  were 
lacking,  also,  the  certificate  by  the  same  consul  of  compliance  on  the 
part  of  the  schooner  with  all  the  requirements  of  the  law  and  all  other 
papers  ordinarily  belonging  to  a  ship  that  is  about  to  sail  or  that  is 
sailing  on  the  seas.  The  master  could  not  prove  in  excuse  that  he  was 
in  this  plight  through  any  lack  of  foresight  or  through  any  accident. 
By  the  statement  of  both  Mr.  Delort  and  the  master  it  was  essentially 
true  that  there  had  been  no  accident  of  any  kind,  and  they  were  not 
in  the  port  of  Güiria  through  am^  imperious  necessity  which  they 
could  not  meet  and  overcome.  They  were  there  voluntarily  so  far  as 
the  master  was  concerned,  and  such  necessity  as  attended  their  situ- 
ation and  their  presence  was  the  act  of  one  of  the  managers  of  e(iual 
power  with  the  other;  no  stranger  had  intervened,  no  trespasser  had 
done  them  any  evil  ;  their  unjustifiable  departure  upon  and  across  the 
seas  and  their  entrance  into  the  harbor  of  Güiria  were  wholly  attribut- 
able and  only  attributable  to  the  company,  its  managers  and  agents. 
Thus  far  Venezuela  is  not  involved.  Does  it  act  without  law  after- 
wards or  without  legal  right?  If  it  does  not,  then,  even  if  it  may  be 
considered  as  acting  harshly,  which  the  umpire  does  not  assert,  the 
Republic  of  France  has  no  right  of  intervention;  for  before  there  is 
right  of  intervention  there  must  be  a  legal  wrong  on  the  part  of  Vene- 
zuela. If  it  conforms  with  its  own  laws  in  its  own  ports,  and  if  those 
laws  are  such  as  are  the  product  of  civilization,  then  there  is  no  error, 
hence  no  responsibility  upon  the  state  and  no  right  of  intervention  on 


«  See  footnote  p.  34. 


42  FRIERDICH    it    CO.   CASE. 

the  part  of  the  claimant  Government.  It  appears  that  Venezuela 
acted  in  this  respect  through  its  regular  odicers  and,  until  the  contrary 
is  clearly  shown,  the  acts  of  those  oilicers  must  be  assumed  to  be  regular 
and  i)roper.  There  is  a  very  proper  presumption  to  this  effect;  and 
it  is  proper  public  policy  and  a  proper  protection  of  the  public  and  its 
interests  that  such  a  presumption  should  attend  the  execution  of 
ollicial  duties.  (120  U.  S.  Sup.  Ct.,  605;  14  Johnson  (X.  Y.),  182;  19 
Johnson  (X.  Y.),  345.) 

The  general  presumption  is  that  public  oilicers  perform  their  ollicial 
duties,  and  that  their  odicial  acts  are  regular.  (American  and  Eng. 
Enc.  of  Law,  2d  edition,  Vol.  22,  i)age  1267,  citing  in  note  24,  a  long 
line  of  cases  in  England  and  the  United  States.) 

Where  some  preceding  act  or  preexisting  fact  is  necessary  to  the 
validity  of  an  oilicial  act,  the  presumption  in  favor  of  the  validity  of 
the  oilicial  act  is  presumptive  proof  of  such  preceding  act  or  preex- 
isting fact.  (lb.  1269  and  note  1  on  same  page,  citing  long  line  of 
supporting  cases  in  the  U.  S.  Sup.  Ct.  and  in  State  courts.) 

Similarly  there  is  a  presumption  of  good  faith  in  favor  of  public 
oihcers.  This  presumption  is  applied  to  sustain  the  regularity  of 
official  acts  in  favor  of  individuals  who  rely  thereon.  (Supra  and  note 
3,  citing  a  line  of  decisions  made  by  the  United  States  Sup.  Ct.) 

A  natural  presmnption  attends  them  to  that  extent. 

So  far  as  appears,  the  court  which  proceeded  to  condemn  the 
schooner  to  pay  a  fine  was  acting  within  its  jurisdiction  and  within 
its  right,  and,  until  the  contrary  appears,  its  act  will  be  presumed  to 
be  regular  and  its  judgment  righteous. 

This  presumption,  supported  by  authorities  above  cited,  applies 
equally  to  the  actions  and  decisions  of  courts.  It  is  only  necessary 
to  show  that  jurisdiction  is  clearly  vested,  and  then  the  maxims  or 
rules  "Omnia  prsesumimtur  rite  esse  acta"  and  "Omnia  priesumun- 
tur  legitime  facta,  donee  probetur  in  contrarium"  apply.  (See  Am. 
and  Eng.  Enc.  of  Law,  2d  edition,  Vol.  22,  pages  1270-71  and  the  cases 
cited  under  note  4  of  page  1271,  both  from  the  United  States  Sup.  Ct. 
and  from  many  of  the  State  courts.) 

The  acts  of  the  court  must,  in  (lie  first  iiistaiico,  hi  presumed  to  l)c  rc<j:ulnr  and  in  conform- 
ity with  settled  usajic,  and  are  conchisive  until  reversed  liy  a  competent  autiiority.  \\'ii- 
liains  V.  V.  S.,  1  Howard  (U.  vS.  .Sup.  Ct.)  290. 

Best,  "Principles  of  the  Law  of  P^vidence,"  firs:  American  from  the 
sixth  Ijondon  edition.  Subsection  IV,  under  head  of  "-Presumí)! ions  in 
favor  of  validity  of  acts,"  the  entire  sul)s(>ction  and  notes. 

So  fur  its  has  appeared  befon»  the  iiinpire,  the  Lnvs  of  A'enezuela  in 
regard  to  these  matters  are  in  harmony  with  the  laws  of  otluM-  civiiizeil 
countries,  and  it  does  not  yet  apjx'ar  befoiv  the  tunpire  wluM'cin  the 
fiscal  court  at  the  port  of  Giiiria  committed  ern)r  in  subj(>cting  this 
schooner  to  the  fine  which  had  been  voluntiirily  invited  by  its  !ij)p('ar- 
ance  in  the  condition  which  is  i)roven  and  admitted. 


OPINION    OF    UMPIRE.  43 

That  the  Government  at  Caracas  yielded  later  to  the  strenuous 
demand  of  the  consul  of  Holland  at  Port  of  Spain  rather  than  to 
withstand  the  demand  is  not  to  the  umpire  an  admission  on  the  part 
of  the  respondent  Government  that  its  acts  in  reference  to  the  Love 
and  Lulu  had  been  irregular  and  unlawful. 

From  the  facts  appearing  in  this  case  the  umpire  is  fully  satisfied 
that  Frierdich  &  Co.  was  practically  defunct  on  the  Sth  of  April,  1S99, 
and  that,  regardless  of  the  incident  of  the  Love  and  Lulu,  it  would 
have  met  substantially  the  same  subscfjuent  conditions  and  would 
have  ended  in  as  complete  and  hopeless  failure  as  in  fact  followed. 
This  failure  was  in  no  especial  sense  hastened  by  the  incident  at  Güiria, 
and  the  only  burden  which  the  detention  of  the  Love  and  Lulu  at 
Güiria  placed  upon  the  company  was  the  sum  which  it  had  to  pay  for 
the  use  of  the  boat  that  took  the  workmen  from  its  asphalt  mines  back 
to  Trinidad;  and  this  is,  of  course,  a  sum  of  no  great  significance. 

Whether  or  not  the  action  of  the  customs  oilicers  at  Güiria  and  of 
the  fiscal  court  were  in  fact  regular  and  necessary  is  a  matter  of  but 
slight  pecuniary  importance  to  the  claimant  com})any,  and  since  it 
was  the  primary  and  potent  cause  of  its  own  misfortunes  in  connection 
with  this  incident  and  by  its  own  voluntary  misconduct  brought  these 
inr[uiries,  vexations,  and  expenses  upon  the  customs  officers  and  the 
court  at  Güiria,  it  is  not  in  position  to  scrutinize  very  closely  what 
the  officers  or  court  of  Venezuela  did  or  did  not  do. 

Here  may  be  applied  with  a  certain  degree  of  propriety  one  of  the 
most  important  maxims  of  e([uity,  viz,  ''He  who  comes  into  ec|uity 
must  come  with  clean  hands." 

It  certainly  has  brought  pecuniary  indebtedness  to  Venezuela  in 
virtue  of  what  occurred  at  Güiria  through  its  own  fault,  which  it  has 
not  yet  asked  the  privilege  to  discharge. 

And  in  this  connection  the  claimant  company  may  properly  consider 
the  value  of  another  of  the  maxims  of  e([uity,  viz,  "He  who  seeks 
equity  must  do  equity." 

As  the  (|uestion  is  presented  here,  it  does  not  involve  the  final  judg- 
ment of  the  court  condemning  the  ship  to  a  payment  of  the  fine  ;  nor 
any  matter  of  restitution  of  the  ship,  for  that  occurred.  It  involves 
only  the  cjuestion  of  detention,  and  detention  involves  only  the  ques- 
tion of  its  reasonableness  in  point  of  time  consumed,  for  a  suflicient 
time  to  know  all  the  facts  and  to  assemble  them  before  the  court,  and 
for  the  court  to  act  thereon  was  a  necessary  adjunct  to  the  situation. 
If  the  conditions  on  both  sides  are  regarded  as  producing  an  ef|uilib- 
rium,  justice  is  done,  in  the  opinion  of  the  umpire;  and  he  so  holds. 

This  claim  is  dismissed  for  want  of  equity  in  the  claimant  company, 
and  the  award  will  be  diawn  accordingly. 

NoRTHFiELD,  July  31,  1905. 


CLAIM  OF  HEIES  OF  JEAN  MANINAT.— NO.  3/' 


HEAD  NOTES. 


The  respondent  Government  is  hold  liahle  for  injuries  suiîercd  hj-  a  Frenohman  in  the  pres- 
ence of  the  general  in  eoniniand  of  a  division  of  the  Venezuelan  army,  it  appearing  that 
the  party  injured  was  in  the  presence  of  the  conunanding  general  hj-  his  personal  order 
and  that  the  injury  was  caused  by  a  subordinate  officer  without  justifying  reasons. 

The  injury  being  found  to  be  reprehensible  in  character  and  the  respondent  Government  for 
reasons  of  state  declining  or  neglecting  to  punish  the  guilty  persons,  it  is  chargeable 
with  the  actual  damages  suffered  by  the  injured  person  and  sucli  further  sum  as  is  held 
to  be  sufficient  to  make  proper  amends  to  the  claimant  Government  for  this  affront  to 
it  through  one  of  its  nationals. 

It  l)eing  found  by  the  umpire  that  the  person  came  to  his  death  through  the  injuries  thus 
suffered,  but  before  February  19,  1902,  it  is  held  that  such  only  of  his  brothei-s  and 
sisters  as  are  of  French  nationality  can  present  a  claim  before  this  commission  to 
recover  for  his  death. 

This  tribunal  does  not  exist  because  of  damages  suffered  in  Venezuela,  except  these  be  dam- 
ages of  Frenchmen,  limited  in  this  case  to  the  next  of  kin  of  the  deceased,  who  are  them- 
selves Frenchmen.  If  none  be  French,  then  the  claim  falls.  It  is  not  possible  to  hold 
other  than  that  the  national  quality  of  the  claimant  in  fact  determines  tiie  jurisdiction 
of  the  commission. 

It  is  elementary  that  the  burden  of  establishing  nationality  is  with  the  claimant.  It  can 
not  be  assumed  or  conjectured,  but  must  be  clearlj'  proven. 

Record  proof  is  not  essential  if  there  be  other  that  is  convincing. 

«  EXTRACT   FROM    TIIE    MINUTES    OF    THE    SITTING    OF    MAY    19,  1905. 

We  then  took  up  the  examination  of  the  claim  of  the  heirs  of  Mi',  .lean  Maninat. 

The  Fiench  arbitrator,  considering  on  one  hand  that  Mr.  Jean  Maninat  has  died  as  a  result 
of  a  wound  which  the  Venezuelan  officer  gave  him,  but,  on  the  other  hand,  that  Mr.  Pierre 
Maninat  does  not  prove  sufficiently  his  grievance  against  the  Venezuelan  authorities  in  the 
course  of  his  legal  proceedings  with  his  creditors,  accords  to  the  heirs  of  Mr.  Jean  Maninat 
a  sum  of  .500,000  bolivars  for  the  ensemble  of  damages  which  they  have  suffered  for  the 
reparations  which  were  due  them. 

The  Venezuelan  arbitrator  is  of  the  opinion  that  Mr.  Jean  Maninat  was  cured  of  his  wound 
when  he  was  attacked  by  tetanus,  from  whicli  he  died;  that  none  of  the  grievances  formu- 
lated by  him  or  his  heirs  is  established  by  sufficient  proofs:  that  besides  Pierre  Maninat, 
born  in  Venezuela,  is  a  Venezuelan  according  to  Venezuelan  law,  and  that  all  his  four  .sistei-s, 
were  born  without  doubt  also  in  Venezuela.  Two  are  married  to  foreigners,  and  have  con.se- 
quentl}'  lost  their  French  nationalitj'.     Wherefore  he  rejects  ab.solutely  the  claim  in  question. 

M.  dc  Peretti  replies  that  according  to  the  Frencli  law  M.  Pierre  Maninat  and  his  sisters, 
save  those  two  who  have  married  foreigners,  have  conserved  their  Frencli  nationality,  besides 
the  fact  that  Mr.  Jean  Maninat,  born  in  France,  enjoyed  incontestably  French  nationality 
justifies  in  his  eyes  the  competency  of  the  conunission. 

As  he  maintained  his  opinion  previously  expressed,  it  is  agreed  that  the  claim  be  sub- 
mitted to  tlie  Hon.  Frank  IMuiiilcy,  .Northfield,  Vt. 

44 


OPINION    OF    VENEZUELAN    COIÍMISSTONER.  45 

The  marriage  of  a  sister  of  the  deceased  to  a  Frenchman  established  her  French  nationahty 
during  marriage,  which  under  French  hiw  remains  after  the  deatli  of  her  lui.shand. 
There  is  some  proof  tliat  she  was  born  in  France,  none  tliat  s!ie  was  born  in  Vonczuehi. 
Her  French  nationahty  being  cloarly  estabhshod  in  her  marriage,  the  burden  shifts  and 
rests  upon  Venezuela  to  show  Venezuelan  origin  to  divest  her  of  the  nationality  attained 
through  her  marriage.  This  not  being  done  by  Venezuela,  she  is  declared  French  and 
competent  to  present  her  claim  as  next  of  kin  to  her  deceased  brother  for  the  damages 
sufl'ered  by  her  because  of  his  death. 

Both  Governments  must  be  assumed  to  have  had  definite  knowledge  of  the  serious  disagree- 
ment between  them  in  the  matter  of  citizenship,  yet  they  agreed  upon  the  use  of  the 
expression  "  Frenchmen."  To  agree  there  must  have  been  mutual  assent  ¡ind  common 
understanding  of  the  term  employed.  It  is  not  suggested  that  either  of  tiie  contract- 
ing parties  yielded  any  point  of  its  difference  in  this  matter  of  citizenship.  To  agree, 
then,  they  must  meet  upon  a  common  ground.  This  common  ground  must  have  been 
the  plain  where  by  the  laws  of  both  countries  the  claimant  is  a  Frenchman. 

Two  interpretations  being  possible,  that  is  to  be  taken  which  is  least  onerous  upon  the 
party  to  be  charged  with  the  service  or  with  the  loss  resulting  from  the  agreement. 

There  is  also  the  loile  that  in  conflict  of  laws  the  law  of  the  place  of  domicile  should  prevail* 

For  France  to  intervene  where  the  claimant  is  a  Venezuelan  by  the  laws  of  Venezuela  and 
French  under  the  laws  of  France  would  make  the  law  of  France  superior  to  the  law  of 
Venezuela,  which  is  not  permissible  between  two  sovereign  nations. 

The  right  of  the  respondent  Government  to  regulate  her  own  internal  affairs  by  determining 
who  are  her  citizens,  which  involves  mutual  protection  and  .support,  is  too  essential  an 
attribute  of  sovereignty  to  be  invaded  or  disturbed. 

The  rule  of  a  nation  requiring  that  one  who  is  bom  in  the  country  shall  ordinarily  be  its 
citizen  is  a  reasonable  requirement. 

To  all  the  world  but  Venezuela  Fiance  may  follow  each  succeeding  generation  born  in  Vene- 
uela  but  of  French  origin  so  long  as  her  affections  dictate  or  her  laws  require  or  permit; 
but  not  so  as  to  Venezuela. 

The  effort  of  one  of  the  sons  to  establish  French  nationality  by  acts  of  allegiance  after  the 
death  of  the  injured  person  can  not  affect  his  right  as  a  claimant  here,  as  that  depends 
in  this  case  upon  the  national  quality  of  the  claimant  at  tlie  time  of  the  inception  of 
the  claim. 

The  next  of  kin  found  to  be  of  French  nationality,  being  a  widowed  sister,  can  properly  sus- 
tain and  maintain  a  claim  for  some  pecuniary  loss,  although  she  was  never  dependent 
upon  him  for  care  or  support  and  although  there  is  no  proof  that  he  ever  rendered  either 
and  no  proof  that  she  was  ever  so  circumstanced  as  to  need  either. 

In  this  case  the  greater  portion  of  the  damages  assessed  and  made  payable  to  the  next  of 
kin,  found  to  be  French,  is  because  of  the  unatoned  indignity  to  France  through  the 
injury  received  by  one  of  her  nationals. 

This  tribunal  has  no  part  in  the  final  allotment  or  distribution  of  the  sum  awarded  to  France 
through  the  personahty  of  the  sister  for  whom  Franc*  has  a  right  of  intervention. 
France  has  absolute  dominion  over  the  proceeds  of  the  award,  and  with  its  distribution 
this  commission  has  nothing  to  do. 


OPINION   OF   THE   VENEZUELAN   COMMISSIONER. 

Pedro  Maninat ,  now  a  resident  in  Guatemala,  presented  to  the  minis- 
ter of  foreign  affairs  of  France,  on  the  19th  of  August,  1901,  a  demand 
of  indemnit}'  against  the  Government  of  Venezuela  for  the  sum  of 
2,000,000  francs,  adducing  as  the  ground  thereof  that  in  the  year 
1898,  while  he,  withliis  brother  Juan  Maninat,  was  residing  and  estab- 


46  CASE    OF    HEIRS    OB^    JEAN    MANINAT. 

lished  in  tlio  city  of  Yaloncia,  under  the  firm  name  of  ''Maninat  Her- 
manos," with  two  branch  houses,  one  at  Tinaquillo  and  the  otlier  at 
San  Carlos,  a  revohition  l)roke  out;  that  his  houses  were  robbed  and 
submitted  to  requisitions;  that  liis  brother  Juan  Maninat  was  ill- 
treated  and  wounded  in  the  presence  of  General  Atilio  Vizcarrondo, 
the  second  cliief  of  the  expeditionary  army  of  the  government  of  Gen- 
eral Andrade,  and  died  one  month  after  that  outrage;  that  Pedro 
^laninat  himself  was  the  victim  of  numerous  persecutions,  in  the 
subsequent  years,  which  compelled  him  to  abandon  the  country  and 
thus  avoid  attempts  of  murder. 

Mr.  Pedro  Maninat  adds  that  the  conformity  of  the  amount  of  his 
claim  is  proved  by  the  following  documents,  deposited  with  the  lega- 
tion of  France  at  Caracas: 

A.  Declaration  written  by  his  brother  himself  before  his  death  and 
addressed  to  Mr.  Quievreux. 

B.  Declaration  signed  by  tliirty-tliree  merchants,  witnesses  of  the 
facts  that  took  place  at  Tinaquillo. 

B  *'■'*.  Copy,  certified  and  legalized  by  the  legation  at  Caracas,  of  the 
final  part  of  the  declaration  B,  corroborating  its  contents. 

C.  D.  E.  F.  Declaration  of  which  the  author  of  the  outrage  pre- 
tended to  make  use  in  order  to  make  it  appear  that  he  had  been 
attacked  by  the  brother  of  Maninat.  Extract  of  the  certificate  of 
birth.     Report  of  the  physicians.     Certificate  of  death. 

G.  Petition  of  Mr.  Pedro  Maninat  to  Mr.  Quievreux  asking  liim  to 
ask  for  a  certified  copy  of  several  writings  forming  part  of  the  records 
relating  to  the  bankruptcy  of  ''Maninat  Hermanos,"  existing  in  the 
arcliives  of  the  court  of  the  first  instance  in  civil  and  mercantile  mat- 
ters at  Valencia  mentioned  with  indication  of  sheets,  and  which  Mani- 
nat considers  indispensable  to  ask  for  the  intervention  of  the  French 
Government  and  demand  from  the  Government  of  Venezuela  the 
payment  of  a  just  indemnification,  the  justice  and  precision  of  which 
are  irrecusably  established  in  the  documents  asked  for. 

There  also  appears  among  the  papers  of  these  records  a  letter  dated 
Lima,  the  2d  of  March  of  the  current  year,  signed  by  Justina  Maninat, 
widow  of  Cosse,  addressed  to  the  minister  of  France  in  Venezuela, 
bringing  to  liis  knowledge  that  she  is  one  of  the  sisters  of  the  late  Juan 
Bautista  Maninat,  whose  claim  initiated  by  him  in  180S  and  pursued 
after  his  death  })y  his  brother  Pedro  ^hminat  in  1901,  must  be  in  his 
possession.  The  signer  of  this  letter  asks  the  minister  of  France,  at 
the  same  time,  to  kindly  take  note  of  the  existence  of  her  sister  Clotilde 
Maninat  de  Saldías,  domiciled  in  Lima,  and  in  whose  house  she  lives 
with  her  sister  Juana  Maninat,  as  well  as  of  the  existence  of  Josefina 
Maninat  de  Beguerisse,  residing  in  Guatemala;  and  that,  as  they  are 
the  only  persons  entitled  to  the  claim  brought  against  the  Govern- 
ment of  Venezuela  for  the  robberies,  outrages,  and  chieily  for  the 


OPUíION    OF    VENEZUELAN    COMMISSIONER.  47 

proved  murdor  of  their  brother  Juan,  she  asked,  in  lier  own  name  and 
in  that  of  her  sisters,  to  be  informed  as  to  the  present  state  of  said 
claim. 

In  this  claim  two  t)rders  of  facts  are  intermingled  and  confounded, 
so  as  to  give  rise  to  a  variety  of  ([uestions,  which,  leased  only  on  the 
statement  of  the  claimant,  are  destitute  of  all  proof  and  ground. 
Some  are  relative  to  the  wound  received  by  Juan  Bautista  Maninat 
in  the  city  of  Tina({uillo  on  the  15th  of  April,  1<S98,  and  others  to  the 
suit  of  banlcruptcy  entered  at  Valencia  in  the  year  1899,  against  the 
firm  of  "Maninat  Hermanos"  on  account  of  the  state  of  insolvency 
in  wliicli  said  firm  was  at  the  death  of  Juan  Bautista  Maninat,  which 
took  place  on  the  13th  of  May,  1898. 

What  is  styled  "claim  initiated  by  Juan  Bautista  Maninat,  in  the 
year  1898,  and  continued  after  his  death  ])y  his  brother  Pedro  ^laninat," 
is  only  a  simple  statement  of  facts  narrated  by  the  former  to  Mr.  Quie- 
vreux  in  a  letter  of  seven  pages,  written  in  his  own  handwriting  by 
Juan  Bautista  Maninat  on  the  26th  of  April,  1898,  in  which,  already 
recovered  from  liis  wounds,  gives  him  details  as  to  the  attempt  of 
wliich  he  held  that  he  was  a  victim  on  the  14th  of  April  and  asks  in 
conclusion  for  the  protection  of  the  French  Government  for  the  pun- 
ishment of  those  he  considered  guilty,  and  to  the  end  that  the  fact 
of  which  he  complained  should  not  remain  unpunished. 

As  appears  proved  by  the  letter  dated  the  26th  of  April  of  the  same 
year,  addressed  by  the  consular  agent  at  Valencia  to  the  vice-consul 
of  France  in  Caracas,  Mr.  Quievreux,  Mr.  Juan  Bautista  Maninat  was 
in  a  position  by  said  date  to  come  to  Caracas,  overrunning  a  distance 
of  150  Idlometers,  and  to  return  soon  after  to  Valencia.  From  the  cer- 
tificate produced  by  Messrs.  Juan  Bautista  Posadas  and  Francisco 
Cisneros,  medical  doctors  who  examined  at  the  request  of  the  judge 
of  the  municipalit}?'  of  Tinaquillo,  Juan  Bautista  Maninat,  on  the  16th 
of  April,  the  following  day  after  the  occurrence,  it  appears  that  the 
wound  situated  on  the  left  temporal  auricular  region  had  afi'ected  the 
skin  and  subcutaneous  tissues,  the  respective  auricular  lap  and  a  super- 
ficial part  of  the  masseteric  muscle,  wherefore  they  declared  it  to  be 
less  dangerous. 

From  the  certificate  of  death  presented,  issued  by  the  competent 
official  of  the  city  of  Valencia,  the  domicile  of  Juan  Bautista  Maninat, 
it  appears  that  the  latter  died  in  said  city  on  the  13th  of  May,  twenty- 
eight  days  after  the  medical  examination  and  sixteen  days  after  his 
trip  to  Caracas,  of  traumatic  tetanus,  as  was  certified  by  Dr.  J.  R. 
Revenga.  P'rom  what  has  been  exposed  it  is  inferred  that  the  death 
of  Juan  Bautista  Maninat  was  not  caused  by  the  wound  he  received 
at  Tinaquillo,  and  that  it  was  the  consequence  of  a  disease  acquired, 
how  and  for  what  reasons  it  does  not  appear.  The  civil  responsibility 
for  indemnification  of  damages  and  prejudices  in  the  cases  of  perpe- 


48  CASE    OF    HEIRS    OF    JEAN    MANINAT. 

tration  of  an  offense  constitutes  a  claim  of  the  person  damaged  against 
the  author  of  the  damage  and  is  brought  simuhaneously  with  the 
penal  action  or  separately.  There  is  no  responsilîility  on  the  part  of 
the  government  of  a  country  for  such  facts,  except  in  the  case  of  denial 
of  justice  or  of  notorious  injustice  in  the  action  brought  by  the  party 
offended  against  the  author  of  the  offensive  act.  The  suit  for  civil 
responsibility  that  may  be  brought  by  everyone  that  has  sustained  a 
damage  in  his  person  or  interests  against  the  author  or  authors  of  an 
offensive  act  was  not  entered  b}"  Juan  Bautista  Maninat  or  by  his  law- 
ful heirs  against  the  party  suspected  of  responsibility  for  the  damage 
done  to  the  former. 

The  claim  against  the  Government  of  Venezuela,  wliich  can  only  be 
based  on  a  denial  of  justice,  in  the  respective  suits  in  which  both  the 
penal  and  the  civil  action  have  ])een  evidenced  and  decided,  simul- 
taneously or  separately,  is  therefore  destitute  of  all  ground  that  may 
render  it  admissible,  for  Juan  Bautista  Maninat,  or  the  present  claim- 
ants, who  have  not  entered  the  ci\'il  action  pertaining  to  them  against 
General  Atilio  Vizcarrondo. 

The  civil  action  to  be  entered  for  the  reparations  and  restitutions  in 
the  cases  established  by  the  penal  law  can  not  be  decided  without  a 
firm  sentence  having  been  rendered  in  the  penal  action,  when  the 
former  has  been  entered  separately,  and  when  it  has  been  simultane- 
ously entered,  or  when  the  party  offended  has  become  a  party  in  the 
civil  suit,  then  the  condemnator}^  sentence,  which  imposes  a  punish- 
ment on  the  defendant,  gives  by  itself  to  the  party  offended  a  right 
to  the  reparations  owed  him  by  the  author  o:  the  offense. 

The  commission  o£  an  offense  can  onl}'^  give  rise,  therefore,  to 
reparation  by  means  of  a  civil  action,  the  offended  party  constituting 
himself  a  civil  party  in  the  respective  penal  process,  or  separately 
entering  his  action  as  plaintiff,  in  wliich  latter  case,  that  such  repara- 
tions may  be  obtained,  the  exhaustion  must  precede  of  all  ordinar}" 
and  extraordinary  remedies  which  the  law  offers  the  defendant 
against  the  sentence  declaring  him  guilty. 

Nothing  of  this  appears  proved  by  the  documents  produced  before 
this  commission. 

The  declaration  which  has  been  presented  with  several  signatures  of 
private  individuals  of  Tinaquillo,  and  another  of  the  judge  of  the  muni- 
cipality of  the  district  of  Falcon  relating  to  the  acts  which  occurred 
during  the  stay  oi  the  forces  of  Gen.  Atilio  Vizcarrondo  at  Tinaquillo, 
are  destitute  of  all  evidential  force  and  are  not  authentic,  for  which 
reason,  besides  our  l)eing  unable  to  take  them  into  consideration,  they 
are  not  prop^T  as  evidence  that  there  has  been  any  denial  of  justice 
against  Mr.  Juan  Bautista  Maninat  while  endeavoring  to  obtain 
before  the  court  the  condenmation  to  the  ])ayuient  of  damages  and 
prejudices  against  him  whom  he  considered  responsible  i"or  his  wound, 


OPINION    OF    VENEZUELAN    COMMISSIONER.  49 

as  for  that  he  would  have  been  required  to  constitute  himself  as 
plaintiff  in  the  respective  process. 

The  locaLauthorities  proceeded  to  open  the  investigation  ordered 
by  the  law  immediatel}^  after  the  wound  of  Mr.  Maninat  had  occurred, 
and  the  national  Government,  as  appears  from  the  notes  interchanged 
between  its  minister  of  foreign  affairs  and  the  vice-consul  of  France, 
took,  as  soon  as  it  was  informed  of  the  occurrence,  all  the  steps  lead- 
ing to  the  investigation  of  the  particulars  of  the  case.  It  thus  appears 
from  the  proceedings  shown  by  the  records  kept  in  the  court  of  the 
district  of  Falcon  upon  which  the  investigation  of  the  fact  was 
incumbent. 

The  Venezuelan  arbiti'ator,  therefore,  finds  no  ground  for  the  con- 
cession of  an  indemnity  to  the  heirs  of  Juan  Bautista  ^laninat,  even  if 
any  of  his  sisters  were  of  French  nationality  and  had  preserved  it,  for 
the  wound  received  by  the  former,  which  wound  was  the  object  of 
investigation  on  the  part  of  the  competent  officials  who  complied 
therein  mth  the  legal  prescriptions,  whilst  it  is  not  proved  that 
Maninat  ever  brought  on  his  part  any  action  against  those  he  con- 
sidered responsible,  and  much  less  that  the  courts  called  to  try  and 
decide  this  demand  of  indemnification  had  committed  any  denial  of 
justice  or  notorious  injustice. 

As  to  the  acts  mentioned  by  Mr.  Pedro  Maninat  to  justify  the 
amount  of  his  claim  and  relating  to  the  bankruptcy  suit  entered  before 
the  competent  tribunals  of  the  State  of  Carabobo  against  the  firm  of 
''Maninat  Hermanos,"  domiciled  in  Valencia,  no  faith-deserving  evi- 
dence has  been  presented  in  support  of  the  pretensions  of  Pedro  Man- 
inat; and,  on  the  contrary,  ÍTom  the  terms  of  the  official  notes  of  the 
vice-consul  of  France,  ^Mr.  Quiévreux,  inserted  in  the  records,  it  appears 
proved  that  said  official  alwa3^s  considered  it  to  be  his  duty  to  remain 
alien  to  the  reiterated  demands  of  Pedro  Maninat,  that  he  should  inter- 
fere in  a  commercial  affair,  exclusively  submitted  to  the  tribunals  of 
the  country  and  ^^hich  could  only  be  taken  into  consideration  when 
there  was  a  denial  of  justice,  after  the  exhaustion  of  all  the  legal  reme- 
dies. All  the  circumstances  of  that  suit,  presented  by  the  claimant 
himself  in  different  statements  and  letters,  tend  to  prove  the  perfect 
regularity  of  the  bankruptcy  suit  and  the  correctness  of  the  proceed- 
ings followed  by  the  tribunals  that  tried  the  case  in  conformity  with 
the  provisions  of  the  commercial  code.  It  is  to  be  observed  that  it 
is  proved  by  the  certificate  of  birth  existing  in  the  parish  church  of 
Valencia  that  Pedro  Maninat  was  born  in  that  to%\Tii  in  1868,  and  that, 
therefore,  he  is  of  Venezuelan  nationalitj^,  wherefore  he  can  not  claim 
from  the  Government  of  Venezuela  before  this  commission. 

For  all  the  preceding  reasons  the  claim  of  Pedro  Maninat,  amounting 
to  the  sum  of  2,000,000  francs,  is  disallowed  in  all  its  parts,  and  like- 
S.  Doc.  533,  59-1 i 


50  CASE    OF    HEIRS    OF   JEAN    MANINAT. 

wise  what  Justina  Maninat,  widow  of  Cossé,  pretends  to  adduce  con- 
cerning the  same  claim  must  be  rejected. 
Caracas,  May  19,  1903. 


NOTE    BY    TIIE    TEXEZrELAN    COMMISSIONER. 

The  French  arbitrator,  as  appears  from  the  record  of  the  proceeding,  allowed  for  this 
claim  the  sum  of  .500,000  bolivars  for  the  death  of  Maninat,  which  he  considered  to  have 
been  occasioned  by  the  wound,  and  for  the  damages  that  death  caused  thefommorcial  house. 
In  the  discussion  to  which  this  opinion  gave  rise  the  Venezuelan  arbitrator  argued  that  the 
person  who  had  presented  the  claim  was  Pedro  Maninat,  a  Venezuelan  citizen  by  birth,  as  he 
could  soon  prove  it  by  producing  the  certificate  of  birth  existing  in  the  city  of  Valencia: 
that  the  sisters,  Clotilde  Maninat  de  Saldías  and  Josefina  Maninat  de  Beguerisse,  even  in 
case  of  their  having  been  French  on  account  of  their  birth  in  French  territory,  bj-  the  time 
of  the  facts  on  which  the  claim  is  based  and  thereafter,  had  lost  their  French  nationality 
by  their  marriages  with  persons  alien  to  that  nationality.  These  circumstances  did  not 
modify  the  opinion  of  the  French  arbitrator  and  the  decision  was  submitted  to  the  umpire. 


OPINION  OF  THE  FRENCH  COMMISSIONER. 

M.  Pierre  ]\Iamnat  and  liis  sisters,  Mdmes.  Justine  Cossé  (née  Mani- 
nat), Clotilde  Saldías  (née  Maninat),  Josephine  Beguerisse  (née  Mani- 
nat), and  Mlle.  Jeanne  Maninat,  claim  jointly  an  indemnity  of  2,000,000 
bolivars  for  the  murder  of  their  brother,  M.  Jean  Maninat,  who  died  in 
May,  1898,  from  the  result  of  a  wound  received  at  the  headquarters  of 
the  Government  forces,  for  the  damage  which  this  death  caused  this 
house  of  commerce,  Maninat  Brothers,  which  had  to  liquidate  its  affairs 
after  the  departure  of  its  head,  for  the  requisitions  and  the  confisca- 
tions upon  the  proprietors  of  tliis  house  by  the  Government  and  insur- 
gent troops,  for  the  persecutions  and  denials  of  justice  of  wliich  M. 
Fierre  Maninat  was  the  victim  in  the  years  following  in  the  course  of 
the  defense  of  his  rights.  I  have  reduced  to  500,000  bolivars  the 
indemnity  which  I  believe  in  equity  due  to  those  interested.  I  have 
considered  in  the  first  place  as  not  debatable  that  the  Venezuelan 
Government  is  responsible  for  the  death  of  M.  Jean  Maninat.  The 
ISth  of  April,  1898,  an  officer  sent  by  General  Vizcarrondo,  cliief  of  the 
staff  of  General  Crespo,  presented  himself  at  the  home  of  M.  Jean 
Maninat  at  Tinaquillo  and  requested  him  to  hand  over  to  him  four 
drays,  of  which  General  Vizcarrondo  had  need  to  transport  his  amnui- 
nition.  This  Frenchman,  who  had  already  often  loaned  without 
remuneration  a  like  aid  to  the  Venezuelan  authorities  to  further  the 
reestablishment  of  pul)lic  order  and  who  had  just  been  the  victim  of 
an  armed  invasion  and  of  the  theft  of  an  amount  of  merchandise, 
showed  himself  ready  to  conform  to  this  requisition  on  condition  that 
General  Vizcarrondo  give  liim  a  written  order.  In  this,  he  only 
followed  the  precepts  of  good  sense  and  conformed  to  the  reconunen- 


OPINION    OF    FRENCH    COMMISSIONER.  51 

dations  given  by  the  legation  of  France  to  its  compatriots.  Then  he 
sent  to  the  general  one  of  his  employees,  who,  far  from  obtaining  a 
written  order,  was  told  to  invite  his  employer  to  present  himself  with- 
out delaj^  at  headquarters.  Being  questioned  by  the  general  in  the 
midst  of  his  staff  and  summoned  to  obey,  M.  Maninat  did  not  reñise, 
but  renewed  his  demand  for  a  written  order.  Tliis  very  natural 
insistence  exasperated  tliis  strange  chief  of  staff.  AI.  Maninat  was 
insulted,  maltreated,  threatened  with  death,  grievously  wounded  by 
a  Venezuelan  officer,  and  put  in  prison,  from  which  he  only  got  out  by 
the  intervention  of  the  French  representative  at  Caracas.  If  there 
had  been  on  his  part  the  least  provocation,  the  authorities  would  not 
have  failed  to  invoke  it  and  apply  the  penal  law  in  all  its  rigor.  The 
prompt  release  of  the  prisoner,  culpable  merely  of  having  spoken  the 
language  of  reason,  of  defending  his  rights,  and  the  absence  of  all 
further  prosecution,  sufficed  to  prove  that  the  report  of  the  victim  is 
true  in  every  point.  No  one,  besides,  has  denied  the  accuracy  and  the 
pulilic  opinion  at  the  time  of  the  incident  and,  since  I  have  been  able  to 
verify  during  my  sojourn  at  Valencia,  has  been  on  the  contrary  unani- 
mous in  confirming  it.  In  like  manner  the  numerous  witnesses  and  the 
certificates  of  the  doctors  who  figured  in  the  dossier  confirm  it,  and  also 
the  authorized  declaration  of  Mr.  Quiévreux,  representative  of  the 
French  Government  at  Caracas,  who  received  the  visit  of  the  victim  some 
days  after  the  incident.  M.  Jean  Maninat  was  wounded  by  a  blow 
from  a  saber,  which  laid  open  his  face  from  the  forehead  to  the  ear  and 
would  have  killed  him  if  the  straw  hat  wliich  he  wore  had  not  lessened 
the  violence  of  the  blow.  The  wound  was  dressed,  and  M.  Maninat  was 
able  to  come  to  Caracas,  but  it  was  so  little  healed  that  the  13th  of 
May  !M.  Maninat  died  from  traumatic  tetanus.  He  surely  would  never 
have  been  attacked  by  this  disease,  which  one  can  not  contract  except 
as  a  result  of  a  wound,  if  he  had  not  been  wounded.  One  can  affirm, 
then,  that  his  death  has  certainly  been  caused  by  unqualified  violence 
committed  upon  his  person  b}^  a  Venezuelan  officer.  It  seems  to  me 
just  that  Venezuela  indemnify  the  family  of  the  victim  of  such  treat- 
ment, w^hich  in  all  countries,  even  in  time  of  war,  would  have  raised  a 
universal  reprobation  and  led  to  an  immediate  reparation.  It  is  nec- 
essary to  consider  in  the  second  place  that  M.  Jean  Maninat  was  the 
elder  of  the  family.  His  untimely  death  gave  a  blow  the  more  disas- 
trous to  the  house  of  Maninat  Brothers,  because  of  the  circumstances, 
difficult  for  every  commercial  enterprise.  Even  in  the  hji^othesis 
that  the  affairs  of  this  company  may  have  been  jeopardized  for  some 
time,  wliich  is  not  in  any  way  proven,  but  which  would  be  very 
likel}'  considering  the  state  of  the  country,  one  ought  to  recognize  that 
the  disappearance  of  the  head  of  the  house  was  not  calculated  to 
ameliorate  the  situation  of  the  firm.  We  know  besides,  by  the 
report  of  the  Venezuelan  commission  in  bankruptcy,  that  the  result 


52  CASE    OF    HEIRS    OF   JEAN    MANINAT. 

of  the  examination  of  the  books  and  of  the  correspondence  has  not 
resulted  in  finding  any  indication  of  fraud  or  of  culpabiUty  on  the  part 
of  the  })ankrupt.  and  on  the  contrary  jiermits  the  conchision  that  the 
bankruptcy  was  caused  by  the  re([uisitions  and  exigencies  of  the  two 
parties  in  the  armed  struggle  continued  for  more  than  two  years. 

On  these  two  main  points  the  Venezuelan  Government  is  much 
involved  in  the  ruin  of  the  house  of  commerce,  Maninat  Brothers, 
which  must  have  had  a  considerable  capital,  if  one  can  judge  from  the 
extent  of  its  business  and  its  triple  establishment  at  ^'alencia,  Tina- 
quillo,  and  San  Carlos. 

Finallj^,  so  far  as  concerns  the  denials  of  justice  of  which  M.  Pierre 
Maninat  has  been  the  victim  during  the  suit  which  on  the  occasion  of 
the  bankruptcA'  he  had  to  present  before  the  difl'erent  judiciary 
powers,  nothing  seems  to  me  sufficiently  established  to  involve  the 
responsibility  of  the  Venezuelan  Government  and  justify  a  demand 
for  indemnity. 

The  reading  of  the  articles  merely  show  that  delays  have  been  pro- 
duced, and  they  are  not  exaggerated.  As  for  the  persecutions  of 
which  the  interested  party  would  have  been  the  object  on  the  part  of 
the  administrator  and  judiciary  authorities,  if  they  are  not  proven  by 
the  dossier,  it  is  almost  certain  that  they  have  not  been  spared  to  M. 
Pierre  Maninat.  I  wish  to  cite  as  proofs  of  this  the  unanimous 
opinion  of  the  French  and  Venezuelan  colonists  whom  I  have  ques- 
tioned during  m}'  journey  to  Valencia,  and  also  the  fact  that  M.  Pierre 
Maninat  has  had  to  leave  Valencia  and  go  to  establish  liimself  at  Gua- 
temala, and  that  they  seem  to  have  made  his  departure  necessary. 

It  is  true,  on  the  other  hand,  and  that  has  been  confirmed  equally 
at  Valencia,  that  M.  Pierre  Maninat  brought  about  many  of  the  trou- 
bles which  he  had  to  undergo  by  his  gruffness  and  liis  imprudent  man- 
ners. He  ought,  consequently,  to  take  upon  himself  more  of  the  blame 
for  his  misfortunes.  One  could,  however,  object  that  it  is  not  because 
a  pleader  is  sturdy  that  one  can  refuse  to  render  him  justice. 

Since  he  has  left  the  country  the  ill  will  of  Venezuelan  authorities 
has  continued  to  follow  M.  Pierre  Maninat.  They  have  raised  in  his 
way  a  thousand  difficulties  w^hen  he  wished  to  have  delivered  to  him 
copies  of  the  exhibits  of  his  suit.  These  copies  were  officially  refused 
the  minister  of  France,  who  demanded  them,  as  the  arrangement  in 
force  gave  him  a  right,  and  the  interested  party  had  to  resort  to  indi- 
rect means  and  to  pay  quite  a  large  sum  to  obtain-these  copies  whii-h 
he  wanted  to  join  to  his  dossier.  For  all  these  reasons  I  have  thought 
that  the  indemnity  demanded  might  in  justice  be  reduced  to  500,000 
bolivars,  which  would  be  for  the  lieirs  of  M.  Jean  Maninat  a  just 
recompense  for  the  death  of  their  brother  and  the  damage  which  pre- 
ceded and  followed  his  death. 


OPINION    OF    FRENCH    COMMISSIONER.  53 

My  colleague  has  not  shared  this  opinion.  He  concludes  first,  from 
the  fact  that  M.  Jean  Maninat  did  not  succumb  until  twenty-eight 
days  after  having  been  wounded,  that  the  wound  received  at  Tina- 
quillo  was  not  the  cause  of  his  death,  which  was  ''the  result  ot  a 
disease  contracted  no  one  knows  in  what  manner  nor  from  what 
causes."  The  certificate  of  Doctor  Revenga  attests,  however,  M. 
Jean  Maninat  has  died  from  traumatic  tetanus;  that  is  to  say,  of 
tetanus  following  his  wound.  We  know  that  tetanus  is  a  disease 
which  develops  only  in  those  who  are  wounded.  It  is  then  indubita- 
ble that  the  saber  blow  received  by  M.  Maninat  was  the  efficient  cause 
of  his  death,  since  the  death  was  caused  by  tetanus,  and  tetanus  is 
the  result  of  a  wound  ;  but  even  if  one  refuses  to  admit  it  contrary  to 
the  declaration  of  the  Venezuelan  doctor  and  also  contrary  to  the  evi- 
dence, it  remains,  nevertheless,  that  M.  Jean  Maninat  has  been  struck 
under  circumstances  of  which  we  are  acquainted  ;  that  he  was  wounded 
by  an  officer  at  headquarters  where  he  had  been  ordered  to  come  and 
where  nothing  proves  that  he  did  not  conduct  liimself  conformably 
to  the  proprieties.  Even  if  not  followed  by  the  death  of  its  victim, 
this  cowardly  deed,  which  nothing  renders  doubtful  and  which  no  one 
thinks  a  benefit,  would  it  not  have  called  for  an  indemnity  so  much 
the  more  so  as  no  procedure  has  been  set  in  motion  against  the  guilty 
one?  Why  then  reject  entirely  the  claim?  Doctor  Paúl  then  estab- 
lished that  M.  Jean  Maninat  not  having  invoked  a  civil  action  conse- 
quent upon  or  parallel  with  a  penal  action  because  of  a  tort  of  which  he 
was  the  victim,  the  responsibility  of  the  Venezuelan  Government  is 
not  involved,  that  resulting  only  from  a  denial  of  justice,  or  notorious 
injustice.  One  can  reply  that  none  of  the  numerous  strangers  injured 
in  the  course  of  the  Venezuelan  revolution  and  beneficiaries  to  this 
right  of  indemnit}^  accorded  by  the  mixed  commission  have  appealed 
to  the  justice  of  the  country.  All  protocols  of  Washington,  like  the 
protocol  of  Paris,  have  had  precisely  for  their  end  to  take  away,  by  an 
exception,  entered  upon  by  its  OA\m  free  will  so  far  as  concerns  France, 
by  the  Venezuelan  Government,  foreign  claimants  from  ordinary 
tribunals  to  international  tribunals  before  whom  Venezuela  is  repre- 
sented. One  can  not  refuse  to  ]M.  Jean  Maninat  and  liis  heirs  the 
privilege  granted  to  several  million  other  foreign  claimants  who  have 
been  benefited  by  this  exception  justified  by  the  circumstances.  It 
is  to  be  noted  that  the  protocols  do  not  speak  merely  of  denials  of 
justice.  They  concern  ever}'-  claim  of  whatever  nature  it  may  be. 
In  fact,  of  about  five  hundred  French  claimants  three  only  have 
claimed  for  denials  of  justice,  the  others,  like  the  Maninats,  not 
having  commenced  by  recourse  to  the  Venezuelan  justice  and  hav- 
ing directly  addressed  themselves  to  the  commissions  of  arbitration. 
As  for  the  investigation  ordered  by  the  local  authorities,  not  only  does 
it  not  seem  to  have  been  done  intending:  to  brine;  about   a   serious 


54  CASE    OF    HEIRS    OF    JEAN    MANINAT. 

result,  but  it  lacked  jjenalty;  besides  it  does  nut   invalidate  in  any 
way  the  statement  or  the  victim. 

Moreover  the  Venezuelan  commissioner  holds  that  the  claim  of 
Pierre  Maninat  and  his  sisters  is  not  admissible  Ix'cause  they  are 
Venezuelans  by  nationality,  being  born  in  Venezuela,  but  Jean 
Maninat,  whose  death  and  material  losses  are  the  exclusive  grounds 
of  the  indenuiity  to  be  awarded,  was  born  in  France,  of  French  par- 
ents, and  never  did  acquire  Venezuelan  citizenship,  nor  did  he  lose 
his  French  nationality,  which,  on  the  other  hand,  no  one  has  ever  dis- 
puted. This  in  itselJ  is  sufficient,  no  matter  what  the  condition  of  the 
heirs  might  be,  to  submit  the  claim  to  the  commission  appointed  to 
hear  and  decide  on  French  claims.  But  I  consider  that  if  one  takes 
account  of  the  character  of  the  heirs,  the  mixed  commission  remains 
with  jurisdiction.  In  fact,  Pierre  Maninat  and  his  sisters  were  bom 
in  Venezuela,  but  of  French  parents  ;  they  enjoyed  then  two  nationali- 
ties at  once — at  their  birth  Frenchmen,  according  to  French  law,  Vene- 
zuelans according  to  Venezuelan  law.  This  is  indisputable,  but  when 
the  protocol  mentions  "claims  lor  indemnities  entered  by  French- 
men," this  means  claims  presented  by  persons  whose  protection  the 
French  Government  endeavors  to  insure,  because  they  are  recog- 
nized as  French  citizens  by  the  French  laws.  The  protocol  does  not 
specif}^  in  any  manner  that  the  laws  of  Venezuela  should  also  recog- 
nize such  persons  as  French  citizens.  On  the  contrary,  all  th(^  j^ro- 
tocols  signed  in  Washington  last  year  between  Venezuela  and  the 
foreign  powers  have  expressly  established  that  local  legislation  was 
not  to  be  taken  into  consideration.  Besides,  two  of  the  sisters  of  Jean 
Maninat  have  assuredly  lost  their  Venezuelan  nationality  and  are 
exclusively  French,  since  they  have  married  Frenchmen,  Messrs. 
Cossé  and  Beguerisse.  Mile.  Jeanne  Maninat  has  been  away  from 
Venezuela  since  her  childhood  and  lives  in  Peru.  M.  Pierre  Maninat 
has  never  declared  himself  Venezuelan  and  has  always  maintained 
the  title  of  a  Frenchman.  He  left  Valencia  without  intention  of 
returning  and  has  settlea  at  Guatemala.  Finally,  he  has  fulfdled  his 
military  obligation  according  to  the  French  law,  and  the  French  con- 
sular agents  at  Caracas  and  Valencia,  at  Puerto  Cabello  and  at  Guate- 
mala, have  airead}^  written  him  on  their  registers  of  matriculation  of 
French  citizens.  In  an  analogous  case,  that  of  M.  Piton,  Doctor  Paul 
has  recognized  without  difficulty  the  jurisdiction  of  the  mixed  coni- 
mission  and  M.  Piton  has  obtained  a  large  indenuiity.  As  for  the 
fourth  sister,  Madame  Saklias,  she  has  marri(>d  a  Peruvian  and  she 
has  not  lost  her  French  nationality  unless  the  Peruvian  law  accords 
the  natiotuility  o"  her  husband.  In  this  case  she  has  also  lost  her  Vene- 
zuelan nationality;  but  even  as  to  this  last  mentioned,  the  only  one 
among  the  heirs  of  M.  Maninat  whose  nationality  may  be  doubtTul, 
the  commission  of  arbitration  is  competent  to  accord  to  her  an  indem- 


OPINION    OF    VENEZUELAN    COMMISSIONER.  55 

nity,  since  she  presents  herself  only  as  the  heir  of  a  claimant  wño 
enjoyed   exclusively   French  nationality. 

Finally,  we  ought  not  to  forget  that  according  to  the  terms  of  the 
protocol  an  indemnity  ought  to  be  paid  in  bonds  of  diplomatic  debts 
and  not  in  gold.  Thanks  to  this  concession  granted  to  the  Vene- 
zuelan Government  by  the  French  Government  to  permit  her  to  pay 
her  debts  with  greater  ease,  the  figure  of  indemnities  accorded  to 
Frenchmen  finds  itself  singularly  reduced  in  reality  while  the  indem- 
nities of  other  foreigners  are  payable  in  gold  and  do  not  undergo  any 
decrease  on  the  fixed  amount.  The  bonds  issued  by  the  Venezuelan 
Government  sustain  at  this  moment  a  depreciation  of  60  per  cent  of 
their  nominal  value.  The  result  would  be  then,  iî  the  umpire  shares 
the  sentiment  of  the  French  arbitrator  and  recognizes  for  those  inter- 
ested an  indemnity  of  500,000  bolivars,  a  sum  of  200,000  bolivars 
in  gold  would  be  paid  to  the  heirs  of  M.  Jean  Maninat  by  the  Vene- 
zuelan Government. 

ADDITIONAL  OPINION  OF  THE  VENEZUELAN  COMMISSIONER. 

The  claim  under  discussion  was  made  by  M.  Pedro  Maninat  on 
April  19,  1901,  as  shown  in  his  communication  from  the  city  of  Lima, 
bearing  said  date,  addressed  to  his  excellency  the  nnnister  of  foreign 
affairs  for  France  (Exhibit  3,  document  59).  Subsequent  to  tins,  in  a 
letter  dated  at  the  said  city  of  Lima  on  March  2,  1903,  Justina  Maninat, 
widow  of  Cossé,  informed  the  French  minister  in  Caracas,  M.  Wiener, 
that  she  was  a  sister  of  the  deceased  Juan  Bautista  Maninat,  having 
an  interest  as  such  in  the  claim  entered  by  Pedro  Maninat,  and  that 
there  were  three  other  sisters,  Clotilde  Maninat  de  Saldías,  resident  in 
Lima;  Juana  Maninat,  resident  in  the  same  city,  and  Josefina  Maninat 
de  Beguerisse,  residing  in  Guatemala  (Exhibit  3,  document  62). 

Among  the  documents  delivered  to  the  French  commissioner  sub- 
sequent to  the  meeting  of  May  19,  1903,  when  I  rendered  my  opinion 
on  the  subject — documents  which  have  now  come  to  my  notice — 
there  are  two  letters  dated  at  Lima  on  March  24  and  April  22,  1903, 
bearing  the  signatures  of  Clotilde  Maninat,  wife  of  Saldías,  and  duly 
authorized  b}'  her  husband,  Eulogio  S.  Saldías  ;  Justina  Maninat ,  widow 
of  Cossé,  and  Juana  Maninat,  who,  of  their  own  personal  accord,  and 
desirous  of  maintaining  their  legitimate  rights,  urge  upon  the  French 
minister  in  Caracas  the  continuation  to  a  successful  issue  of  the  claim 
entered  by  their  brother,  Pedro  ^laninat,  now  a  resident  of  Guatemala, 
and  formerly  of  Lima.  Neither  at  the  time  of  the  meeting  of  May  19, 
1903,  nor  in  conjunction  with  the  new  documents  produced,  has  any 
proof  whatever  been  introduced  showing  that  the  aforesaid  Josefina 
Maninat  de  Beguerisse,  who,  it  is  averred,  resides  in  Guatemala,  claims 
any  sum  whatever  from  the  Venezuelan  Government,  nor  that  either 
the  lady  herself  or  her  husband,  Charles  Beguerisse,  may  have  given 


56  CASE    OF    HEIRS    OF   JEAN    MANINAT. 

their  consent  and  authority  to  introduce  their  nameü  and  persons  in 
this  claim,  an  indispensable  requisite  to  become  a  party  to  the  case. 

It  becomes  necessary  to  point  out  the  several  grounds,  groAving  out 
of  facts  of  very  difl'erent  nature,  advanced  by  Pedro  Maninat  and  his 
sisters  Clotilde,  Justina,  and  Juana,  upon  which  rest  their  claim  for 
the  sum  of  2,000,000  francs.  Some  of  these  grounds  are  made  to 
originate  at  the  death  of  M.  Juan  Bautista  Maninat,  wliicli  took  place 
in  May,  1898,  as  it  is  averred  that  liis  death  was  the  result  of  a  wound 
received  by  liim  in  the  general  headquarters  of  the  Government 
troops,  and  because  of  the  damages  sustained  thereby  by  the  firm  of 
"Maninat  Brothers,"  which  it  is  claimed  was  compelled  to  go  into 
liquidation  after  the  death  of  the  head  of  the  firm.  Other  grounds  are 
based  upon  certain  requisitions  and  seizures  made  upon  the  property 
of  the  firm  by  both  the  Govermnent  and  the  revolutionary  troops  and 
upon  the  persecutions  and  denial  of  justice  of  which  Pedro  Maninat 
claims  to  have  been  the  victim  in  subsecpient  years  and  wliile  he  was 
engaged  in  defending  his  rights. 

The  French  commissioner  in  his  opinion  deems  an  indemnity  of 
500,000  bolivars  to  be  a  fair  compensation  for  the  heirs  of  Juan 
Maninat,  by  reason  of  the  death  of  a  brother  and  because  of  the  dam- 
ages suiTered  before  and  after  liis  death;  and  as  regards  the  denials  of 
justice  of  wliich  Pedro  Maninat  complains  as  having  occurred  din-ing 
the  proceedings  originating  in  the  failure  of  "Maninat  Brothers,"  the 
commissioner  does  not  deem  the  claim  sufficiently  substantiated  to 
affect  the  responsibility  of  the  Venezuelan  Government  and  to  justify 
a  demand  for  indemnification. 

Therefore  our  opinions  as  commissioners  differ  on  points  relating  to 
the  several  questions  directly  connected  with  the  wounding  and 
death  of  M.  Juan  Bautista  Maninat;  to  the  persons  of  the  claimants 
Pedro,  Clotilde,  Justina  and  Juana  Maninat,  and  in  the  matter  of  the 
liability  of  the  Venezuelan  Government.  All  these  cpiestions  must  be 
investigated  and  decided  by  the  light  of  the  principles  and  precedents 
established  by  international  law,  the  Venezuelan  laws  applicable  to 
the  case,  and  the  sound  and  just  consideration  of  such  facts  as  are 
fully  verified. 

The  learned  commissioner  for  France  makes  the  following  state- 
ment on  page  S  of  his  opinion  :  " 

.The  Venezuelan  coniniissionor  holds  that  the  claim  of  Pocho  Maninat  and  his  sisters  is  not 
admissible,  because  they  are  W-neziielans  l)v  nationality,  beinj;;  born  in  Venezuela,  but  Juan 
Maninat,  whoso  death  and  material  losses  are  the  exclusive  «iiounds  (s-njci)  of  the  iiulem- 
nity  to  be  awarded,  was  born  in  France  of  French  parents  and  did  never  ac(|uire  \'ene7.uelan 
citizenship,  nor  did  he  lose  his  French  nationality,  which,  on  the  other  hand,  no  one  has 
over  disputed.  Tfiis  in  itself  is  sufficient,  no  matter  what  the  condition  of  the  heirs  mi<jht 
he,  to  submit  the  claim  to  the  commission  appointed  to  hear  and  decido  ou  "  Frouch 
claims." 

a  Page  54. 


ADDITIONAL    OPINION    OF    VENEZUELAN    COMMISSIONER.         57 

According  to  the  sound  principles  of  international  law,  it  is  impos- 
sible to  admit  the  opinion  held  by  my  learned  colleague  that,  no  matter 
what  the  condition  or  nationality  of  the  claimants  or  heirs  might  be, 
it  sullices  that  the  bonds  of  kinsliip  exist  between  them  and  the  per- 
son wronged  and  that  such  person  be  or  might  have  been'  of  French 
nationality  for  the  case  to  come  under  the  claims  commission,  whose 
duty  it  is  to  hear  and  decide  on  '  '  French  claims." 

The  jurisdiction  of  this  claims  commission,  according  to  the  plain 
and  precise  terms  of  the  Paris  protocol  of  February  17,  1902,  to  which 
it  owes  its  existence,  can  not  embrace  other  claims  for  indemnification 
beyond  those  "entered  by  Frenchmen,"  it  being,  therefore,  indis- 
pensable to  prove  that  the  nationality  of  the  claimant  was  solely  and 
exclusively  French. 

It  can  not  therefore  be  held  under  any  circumstances  whatever  that, 
no  matter  what  the  nationality  of  the  claimant  might  be,  the  condition 
of  being  heir  to  a  person  who  was  a  Frenchman  at  the  time  of  liis  death 
is  enough  to  bring  such  claim  under  the  jurisdiction  of  tliis  commission. 
In  support  of  my  opinion  the  following  quotations  are  pertinent: 

Sir  Edward  Thornton,  umpire  for  the  commission  of  the  United 
States  and  Mexico,  under  the  convention  of  July  4,  1868,  makes  the 
following  statement  : 

As  therefore  Mr.  Lizardi's  niece  is  not  a  citizen  of  the  United  States,  and  as  she  would  be 
the  beneficiary  of  whatever  award  the  commissioners  might  make,  the  umpire  is  decidedly 
of  the  opinion  that  the  case  is  not  within  the  jurisdiction  of  the  commission.  Even  if  the 
uncle,  Mr.  Lizardi,  had  been  a  citizen  of  the  United  States,  which  the  umpire  does  not 
admit,  whatever  may  have  been  the  merits  of  the  case  the  jurisdiction  of  the  commission 
would  have  ceased  on  the  death  of  Mr.  Lizardi.     (Moore  Int.  Arb.,  Vol.  3,  2483.) 

In  the  case  of  Elise  Lebret  before  the  Franco- American  commission 
the  counsel  for  the  United  States  said  : 

When  the  treaty  pledges  compensation  by  France  to  citizens  of  the  United  States  it  refers 
to  those  persons  only  whose  citizenship  in  the  United  States  is  not  qualified  or  compromised 
hy  allegiance  to  France,  and  that  when  the  treaty  pledges  compensation  by  the  United  States 
to  citizens  of  France  reference  is  made  to  those  persons  only  ivho  are  not  only  citizens  of 
France,  but  who  are  also  not  included  among  the  citizens  of  the  United  States. 

It  can  not  be  assumed  of  either  government  that  it  intended  to  compensate  pereons  whom 
it  claims  as  its  own  citizens,  and  that  through  the  agency  of  another  government.  (Moore, 
Vol.  3,  2491;  48th  Cong.,  2d  sess.  Ex.  Doc.  235  (BoutwoU's  Report),  p.  129.) 

It  has  been  shown  that  there  exist  precedents  of  mixed  commissions 
in  which  France  was  represented,  when  it  was  established  that  it  does 
not  matter  whether  the  claim  has  been  or  may  have  been  originally  a 
French  claim,  if  before  or  at  the  time  the  treaty  was  concluded  it  had 
ceased  to  be  such,  and  that  the  holder  of  the  claim  can  not  invoke  liis 
government's  mediation  and  protection. 


58  CASE    OF   HEIES    OF   JEAN   MANINAT. 

The  followinc;  princij^les  were  established  by  the  commission  cre- 
ated by  the  protocol  concluded  between  the  United  States  and  France 
July  4,  1831,  as  the  rules  governing  the  commission: 

It  was  of  coui-sc  indispensable  to  the  validit}'  of  a  reclamation  l)efore  the  commissioners 
that  it  should  be  altogether  American.  This  character  was  held  by  them  to  Ix'long  only  to 
cases  where  the  indwidual  in  whose  name  ihe  claim  ivas  preferred  had  been  an  Amei-ican  citizen 
at  the  time  of  the  wronr/ful  act  and  entitled  as  such  to  invoke  the  protection  of  the  United 
States  for  the  property  which  was  the  subject  of  the  wrong,  and  where  the  claim  up  to  the  date 
of  the  convention  had  at  all  times  belonged  to  American  citizens. 

It  was  necessary  for  the  claimant  to  show  not  only  that  his  property  was  American  when 
the  claim  originated,  but  that  the  ownership  of  the  claim  was  stiiî  American  when  the  con- 
vention went  into  eflect.  *  *  *  Xor  could  a  claim  that  lost  its  American  character 
ever  resume  it  if  it  had  heretofore  passed  into  the  possession  of  a  foreigner  or  of  one  otherwise 
incapacitated  to  claim  before  the  commission,  (^^oore,  Int.  Arb.,  vol.  3,  2388:  Venezuelan 
Arbitrations  of  1903,  p.  74.) 

As  a  precedent  bearing  upon  the  personal  circumstances  of  the 
claimants,  Pedro  Maninat  and  sisters,  that  of  Jidio  Alvarez  against 
Mexico,  and  the  opinion  of  Sir  Edward  Thornton,  umpire,  rendered 
October  30,  1876,  may  be  cited,  as  well  i.s  that  of  Herman  F.  "Wulff 
against  Mexico.     (Moore,  note  pp.  1353-135-4). 

*  *  *  the  umpire  can  not  acquiesce  in  the  arguments  put  forward  by  the  counsel  for  the 
claimant,  whoever  that  claimant  may  be.  He  is  of  the  opinion  that  not  only  must  it  be  proved 
that  the  person  to  whom  the  injury  was  done  was  a  citizen  of  the  United  States,  but  aho 
that  the  direct  recipients  of  the  award  are  citizens  of  the  United  States,  whether  these  benefi- 
ciaries be  heirs  or  in  failure  of  them  creditors. 

The  principle  governing  the  matter  imder  discussion  of  the  nation- 
ality of  the  claimant  is  stated  by  Moore,  page  1353,  as  follows  : 

*  *  *  where  the  nationality  of  the  owner  of  a  claim,  originally  American  or  Mexican  had 
for  any  cause  changed,  it  was  held  that  the  claim  could  not  be  entertained.  Thus,  where  the 
ancestor,  who  was  the  original  owner,  had  died,  it  was  held  that  the  heir  could  not  appear  as 
a  claimant  unless  his  nationality  was  the  same  as  that  of  his  ancestor.  The  person  who  had 
the  "right  to  the  award"  must,  it  was  further  held,  be  considered  as  "the  real  claimant" 
by  the  commission,  and  whoever  he  might  be  "  jnust  prove  himself  to  be  a  citizen  "  of  the  Gov- 
ernment by  which  the  claim  was  presented. 

Juan  Maninat  did  not  establish  an}^  claim  against  the  Venezuelan 
Government  because  of  liis  wound,  nor  because  of  damages  to  or 
seizure  of  his  property.  During  the  twenty-eight  days  which  (^lapsed 
between  his  wounding  and  May  8,  1898,  when  he  was  taken  with  trau- 
matic tetanus,  it  only  appears  from  a  long  letter  in  his  o^v^l  handwrit- 
ing, consisting  of  7  pages,  addressed  from  Valencia  on  April  26, 
1898,  to  M.  Quievreux,  the  French  consid  in  Caracas,  that  having 
recovered  from  the  wound  he  was  about  to  give  him  details  of  the 
attempt  at  assassination  to  which  he  was  a  victim  on  April  15,  in  the 
presence  of  General  Vizcarrondo,  chief  of  the  general  staff  of  General 
Crespo,  and  tfiat  he  niigJit  j)erhaps  state  (without  ailirming  the  fact, 
however),  at  the  instigation  of  said  General  Vizcarrondo.  After  a 
minute  statement  of  the  facts  leading  to  the  wound  aitti  of  the  woiuid 


ADDITIONAL    OPINION    OF    VENEZUELAN    COMMISSIONER.         59 

itself,  he  asks  the  French  consul  for  the  mediation  of  the  French  Gov- 
ernment, stating:  that  the  attack  upon  him  was  an  insult  and  that  the 
French  colony  of  Valencia  and  the  nei<z:h])orin<2:  towns  sufferint;  from 
the  evils  of  war  were  indi^^nant  and  demanded  justice  to  be  done. 

"If  such  deed  should  go  unpunished  our  interests  and  our  lives 
would  be  forever  jeopardized,"  Maninat  states  at  the  end  of  the 
aforementioned  letter. 

This  letter,  as  shown  by  note  No.  19,  gave  rise  to  the  official  com- 
munication sent  b}"  ^I.  Quiévreiix,  vice-consid  of  France  in  Caracas, 
to  the  minister  of  foreign  affairs,  transmitting  the  origmal  letter  of  M. 
Juan  Bautista  Maninat;  and  somewhat  Liter,  May  24,  the  same  con- 
sular officer  wrote  again  to  the  above-mentioned  minister,  informing 
liim  of  the  death  of  M.  ^laninat,  produced  by  the  disease  called  trau- 
matic tetanus.  From  that  date  to  the  day  when  the  claim  was 
entered  by  Pedro  ]\[aninat  before  the  French  minister,  three  years 
later,  no  other  mention  whatever  wí;s  made  of  this  matter. 

From  the  documents  submitted,  it  does  not  appear  that  Juan 
Bautista  ^laninat,  the  aggrieved  party,  who  during  his  convalescence 
was  able  to  personally  enter  a  claim  against  the  Venezuelan  Govern- 
ment, did  ever  enter  such  claim,  naming  m  money  the  compensation  for 
the  injury  and  the  damages  sustained  by  liis  person  and  his  property; 
neither  does  it  appear  that  the  minister  of  foreign  affairs  of  France 
had  demanded  from  the  Venezuelan  Government  an  apology  to  the 
French  nation  as  a  nation,  because  of  the  wound  received  by  Mani- 
nat, nor  that  it  had  been  ever  pretended  to  make  the  Government 
authorities  responsible  for  a  deed  w^hich  the  victim  himself  qualifies  as 
an  outrage  to  the  French  colony. 

Moreover,  it  can  not  be  claimed  that  because  the  wrong  done  to  a 
citizen  or  subject  of  another  nation  involves  a  breach  of  international 
law,  the  nationality  of  the  aggrieved  party  must  be  taken  into  con- 
sideration to  maintain  that  the  wrong  survives,  still  preserving  its 
original  nature,  and  that  it  is  a  matter  to  be  submitted  to  a  court  of 
the  nature  of  the  present  court,  even  in  the  case  that  the  aggrieved 
party  be  dead  or  has  changed  his  nationalit}",  or  the  right  to  mdemnifi- 
cation  is  claimed  by  persons  of  a  different  nationality  m  the  capacity 
of  heirs  or  creditors. 

Ralston,  umpire  for  the  Venezuelan  and  Italian  Claims  Commission 
created  by  the  Wasliington  protocol  of  February  13,  1903,  in  the  case 
of  JVIiliani  against  Venezuela,  sets  forth  : 

Wliile  it  remains  tme  that  an  offense  to  a  citizen  is  an  offense  to  the  nation,  nevertheless 
the  claimant  before  an  international  tribunal  is  ordinarily  the  nation  on  behalf  of  its  citizen. 
Rarely  ever  the  nation  can  be  said  to  have  a  right  which  survives  when  its  citizen  no  longer 
belongs  to  it.     (Venezuelan  Arbitrations  of  1903,  Ralston's  Report,  p.  762.) 

Dealing  with  the  same  subject,  the  honorable  umpire,  Mr.  Plumley, 
in  the  case  of  Stevenson  against  Venezuela,  before  the  Venezuelan  and 


60  CASE    ÜF    HEIKS    OF   JEAN    M  AN  IN  AT. 

British  Claims  Commission,  mider  the  Washington  protocol,  February 
13,  1903,  makes  the  following  statement: 

^V^lile  the  position  of  the  learned  agent  for  Great  Britain  is  undoubtedly  correct,  that 
underlying  ever}'  claim  for  allowance  before  international  tribunals,  there  is  always  the  indig- 
nity to  the  nation  through  its  national  by  the  respondent  Government,  there  is  always  in 
commissions  of  this  character  an  injured  national  capable  ofclaimin/j  and  receiving  money 
compensation  from  the  offending  and  respondent  Government.  *  *  *  To  have  meas- 
ured in  money  by  a  third  and  different  party  the  indignity  put  upon  one's  flag  or  brought 
upon  one's  country  is  something  to  which  nations  do  not  ordinarily  consent. 

Such  values  are  ordinarily  fixed  by  the  offended  part}'  and  declared  in  its  own  sovereign 
voice,  and  is  ordinarily  wholly  punitive  in  its  character,  not  remedial,  not  compensator}'. 
(Ralston 's  Report,  pp.  450,  451.) 

Juan  Bautista  Maninat  having  died  without  having  entered  during 
his  life  any  pecuniar}"  claim  whatever  against  the  Venezuelan  Govern- 
ment because  of  the  wound  and  damages  sustained  by  him,  no  actu- 
ally existing  property  or  vested  rights  which  might  be  considered  as 
having  survived  his  death  and  capable  of  conveyance  and  continuation 
were  transmitted  to  his  heirs.  The  award  in  the  case  of  Oscar  Chopin 
agamst  the  United  States  mider  the  convention  of  January  15,  1S90, 
can  not  be  applied  to  the  present  claim.  The  Chopin  claim  was 
entered  on  behalf  of  Oscar  Chopin  himself  and  tlu"ee  other  heirs  to  Jean 
Baptiste  Chopin,  formerly  a  French  citizen,  resident  in  Louisiana,  and 
who  died  in  1870,  leaving  asa  portion  of  Ms  estate  the  claim  in  ques- 
tion. Boutwell's  report  refers  to  the  award  in  favor  of  the  claimants 
for  a  certain  sum  and  makes  the  following  comments  : 

It  may,  however,  be  assumed  fairly  that  the  commission  were  of  opinion  that  the  children 
of  Jean  Baptiste  Chopin,  although  born  in  this  countr}',  were  citizens  of  France,  and  that, 
inasmuch  as  the  death  of  Oscar  Chopin  occurred  after  the  ratification  of  the  treaty  and  after 
the  presentation  of  the  memorial,  his  right  to  reclamation  had  become  so  vested  that  it 
descended  to  his  children,  independently  of  the  question  of  their  citizenship  in  France,  o 

The  claim  first  made  before  the  Government  of  France  by  Pedro 
Maninat,  tliree  years  after  the  death  of  Juan  Bautista  Maninat,  and 
subsequently  supported  by  his  sisters,  does  not  constitute  the  exercise 
of  any  rights  of  inheritance  which  at  the  time  of  Maninat's  death  were 
a  portion  of  the  estate,  wliich  could  have  been  transferred  to  his  sisters 
as  heirs  independently  of  the  question  of  citizenship.  The  claim 
originated  three  years  after  the  death  of  the  de  cujus  and  is  solely 
based,  as  the  Frenchcommissionersaj's,  on  the  death  and  material  losses 
sustained  before  and  after  such  death. 

The  origin,  the  nature,  and  the  moment  when  the  pretension  of  the 
claimants  came  into  life  being  so  clearly  and  precisely  establislied.  and 
leaving  aside  the  question  of  their  capacity  as  heirs,  as  no  prgperty  or 
right  l^elonging  to  the  estate  of  the  deceased  Juan  Bautista  Maninat 
is  involved,  we  have  to  deal  in  the  first  place  with  the  (question  of  the 


a  French  and  American  Claims  Commission,  House  of  Representatives  Ex.  Doc.  No.  235, 
Forty-eighth  Cong.,  2d  sesa.  (Boutwell's  Report),  p.  83. 


ADDITIONAL    OPINION    OF    VEi^EZUELAN    COMMISSIONER.        61 

nationality  of  the  plaintiffs  who  have  entered  the  claim  for  indemnifi- 
cation, viz,  Pedro,  Juana,  Justina,  and  Josefina  Maninat,  and  later 
with  the  question  of  the  right  they  may  show  as  the  WTonged  parties 
because  of  the  death  of  their  brother,  and  the  liability  such  death  may 
cause  to  the  Venezuelan  Government  in  view  of  the  established  facts 
only. 

From  the  statements  subscribed  to  by  Pedro  Maninat  and  by 
(Uotilde  Maninat  de  Saldías,  by  Justina  Maninat,  widow  Cossé,  and  by 
Jeanne  Maninat,  marked  wñth  the  numbers  5  and  8,  which  documents 
are  a  part  of  those  submitted  after  the  session  of  the  commission  on 
Ma}^  19,  1903,  it  appears  from  the  confession  of  the  deponents  them- 
selves that  Pedro,  Clotilde  de  vSaldías,  and  Juana  Maninat  were  born  in 
Venezuelan  territory,  being,  therefore,  Venezuelans  by  birth  accord- 
ing to  Venezuelan  laws. 

As  regards  Josefina  Maninat  de  Beguerisse,  a  resident  of  Guatemala, 
not  only  has  the  fact  of  her  being  born  on  French  soil  not  been  estab- 
lished because  the  proper  entry  in  the  respective  registers  of  births  has 
not  been  submitted  as  required,  but  she  has  not  made  any  claim 
against  the  Venezuelan  Government,  nor  does  it  appear  that  her  hus- 
l^and  has  authorized  the  action  which  her  sisters  residing  in  Lima  have 
taken  in  her  behalf.  A  certificate  signed  by  the  chargé  d'affaires  of 
France  in  Guatemala  has  been  produced  to  show  that  in  the  register  of 
citizenship  of  the  legation  there  exists  an  entry  under  No.  547,  dated 
on  July  24,  1903 — that  is  to  say,  after  the  investigation  and  opinion  of 
the  arbitrators  on  this  claim  had  been  closed.  May  19,  1903 — to  the 
effect  that  Charles  Beguerisse  was  bom  in  Puebla,  a  city  of  Mexico, 
in  1859,  and  was  married  in  Panama  to  Josefina  Maninat  in  1886. 
Such  entry  does  not  in  itself  constitute  a  trustworth}^  proof  of  the 
French  nationality  of  Charles  Beguerisse,  the  husband  of  Josefina 
Maninat;  but,  on  the  contrary,  the  fact  of  Beguerisse' s  birth  in  a 
Mexican  city  shows  prima  facie  that  he  is  a  Mexican  citizen  accord- 
ing to  the  principle  jure  territorii  adopted  by  the  Central  and  South 
American  Republics. 

Justina  Maninat,  widow  Cossé,  has  not  established  her  French 
nationality  and  the  authenticated  copy  of  her  certificate  of  marriage 
in  the  city  of  Panama  to  José  Carlos  Cossé,  wherein  it  is  stated  that  she 
is  a  native  of  Tarbes,  France,  is  not  the  proof  of  such  fact,  but  merely 
a  reference  made  to  it  before  the  priest  of  the  parish  in  Panama,  and 
can  not  be  substituted  for  the  evidence  afforded  by  the  record  of  the 
certificate  of  birth  in  -Tarbes,  which  the  claimant  could  have  well 
obtained  since  this  claim  was  introduced,  four  years  ago.  In  the 
absence  of  such  document,  which  is  the  only  evidence  that  could  prove 
the  fact  of  the  birth  in  Tarbes,  the  presumption  prevails  of  her  birth  in 
Venezuela,  as  well  as  that  of  all  her  sisters  and  brothers,  except  Juan 
Bautista,  whose  birth  in  Tarbes  is  sho%vn  by  the  certificate  of  the  mayor 


62  CASE    OF    HEIRS    OF   JEAN    MANTNAT, 

of  that  town.  This  certificate  is  among  the  documents  lately  submit- 
ted. As  the  above-mentioned  Justina  is  at  present  the  w-idow  of 
Cosse,  and  was  his  widow  on  March  2,  1003,  when  she  joined  issue  in 
the  claim  entered  by  her  brother,  Pedro  Maninat,  she  comes  under  the 
provision  of  the  Venezuelan  laws,  establisliing  that  a  Venezuelan 
woman  married  to  a  foreigner  recovers  her  lost  nationality  when  she 
becomes  a  \\4dow. 

Besides  the  confessions  of  the  parties  themselves,  upon  whom 
devolves  the  dut}^  of  establishing  the  facts  of  their  nationality,  stating 
that  three  of  them  were  born  in  Venezuela  (Pedro,  Juana,  and  Clotilde 
de  Saldías),  the  Venezuelan  Government  has  submitted  to  me  the 
respective  certificates  which  I  append  to  this  opinion,  establishing  the 
fact  that  Pedro  and  Clotilde  Maninat  were  born  within  Venezuelan 
territory.  Clotilde  Maninat  having  married  Don  Eulogio  S.  Saldías, 
a  lieutenant  in  the  Peru\àan  navy,  has  acquired  the  nationality  of  her 
husband. 

Pedro  Maninat,  besides  being  a  Venezuelan  by  birth,  according  to 
the  Venezuelan  laws,  has  submitted  a  certificate  issued  by  the  vice- 
consul  in  charge  of  the  French  legation  in  Caracas,  by  which  it  appears 
that  on  March  23,  1899,  almost  a  ^^ear  after  the  death  of  his  brother, 
Juan  Bautista,  he  appeared  before  the  French  vice-consul  in  the  same 
citv  and  made  a  declaration  to  the  effect  that  he  regretted  not  having 
complied  with  the  military  service  of  the  class  of  1883,  requesting  that 
a  certificate  be  issued  to  him  showing  that  he  had  made  such  avowal 
in  order  to  secure,  if  needed,  his  return  to  France,  binding  himself  to 
place  himself  immediatel}^  after  his  arrival  in  France  at  tho  disposal  of 
the  proper  authorities,  by  whose  decision  in  the  matter  he  would 
abide.  This  act  and  the  subsequent  declaration  made  by  him  in 
Guatemala  at  the  French  legation  as  a  French  citizen — the  fact  of  liis 
having  returned  to  France  and  fulfilled  his  military  obligations  not 
being  established — clearly  show  that  they  were  performed  for  the  pur- 
pose of  making  out  a  case  against  the  Venezuelan  Government  and  to 
arm  himself  with  a  sham  French  citizcnsliip — for  the  want  of  a  legiti- 
mate citizenship  of  long  standing — to  use  it  against  the  country  within 
which  he  was  born.  The  case  of  Charles  Piton,  quoted  by  M.  de  Peretti 
de  la  Ilocca,  is  in  no  way  similar  to  the  one  under  consideration  either 
from  the  standpoint  of  proofs  shown  by  M.  Piton  to  establish  his 
French  citizenship,  which  was  never  contested,  or  from  the  circum- 
stances attending  liis  claim. 

The  French  commissioner  is  of  the  opinion  that  this  commission  is 
competent  to  hear  this  claim,  because,  although  Pedro  Maninat  and 
his  sisters  were  born  in  Venezuela,  the}-  are  the  issue  of  French  parents 
and  had  two  nationalities  at  the  moment  of  their  birth — French, 
according  to  the  French  laws,  and  Venezuelan  in  acconlnncc  with  the 
laws  of  Venezuela. 


ADDITIONAL    OPINION    OF    VENEZUELAN    COMMISSIONEK.        63 

My  learned  colleague  states  : 

This  is  indisputable,  but  when  the  protocol  mentions  claims  for  indemnities  entered  by 
"Frenchmen,"  this  means  claims  submitted  by  pei-soiis  whose  protection  tiie  French  Gov- 
ernment endeavors  to  insure,  because  they  are  recof^nized  as  French  citizens  by  the  French 
laws.  The  protocol  does  not  specify  in  any  manner  that  the  laws  of  Venezuela  should  also 
recognize  such  persons  as  French  citizens.  On  the  eontraiy,  all  the  protocols  signed  in 
Washington  last  year  between  Venezuela  and  the  foreign  powers  have  expressly  estal)lished 
that  "local  legislation"  was  not  to  be  taken  into  con.sideration.'t 

Such  is  the  opinion  of  my  learned  colleague.  Now  let  us  see  what 
has  been  decided  by  the  learned  umpires  upon  whom  has  devolved  the 
duty  of  determining  the  question  of  conflicting  nationality  at  different 
times  and  in  difl^erent  commissions,  decisions  which,  by  reason  of  their 
uniformity  and  the  enlightened  doctrines  they  contain,  have  erected 
as  ])rinciplcs  of  international  law  the  riding  that,  in  case  of  conflicting 
laws  creating  a  double  citizenship  ;  the  law  of  the  respondent  nation 
controls,  and  also  that,  in  cases  of  double  citizensliip,  neither  country 
can  claim  against  the  other  nation,  although  it  may  claim  against  all 
other  nations.  Let  me  state  at  this  juncture  that  there  is  no  simi- 
larity between  the  Paris  protocol  of  February  19,  1902,  controlling  this 
commission,  and  the  protocols  signed  at  Washington  in  1903,  quoted 
by  my  learned  colleague  in  regard  to  the  suppression  of  the  "tech- 
nicalities of  local  legislation."  The  Paris  protocol  does  not  deal  with 
tliis  question,  and  it  is  a  well  known  fact  that  in  the  matter  of  authority 
or  powers  in  themselves  an  exception  to  the  general  rules  universally 
applied,  such  authority  or  powers  must  be  expressly  and  formally 
stipulated,  as  was  purposely  done  in  the  Washington  protocols.  The 
Paris  protocol  created  a  mixed  arbitration  court  to  hear  and  decide 
upon  all  claims  for  indemnification  entered  by  French  citizens,  but 
did  not  except  this  commission  from  making  its  awards  in  strict 
accordance  with  the  principles  of  international  law  generally  admitted 
and  with  the  local  laws  in  such  cases  as  the}^  n^ay  properly  appl3^ 
On  the  other  hand — and  this  is  merely  a  casual  remark — the  provision 
to  which  my  learned  colleague  refers,  stipulated  in  the  Washington 
protocols,  does  not  establish  any  distinctions  between  the  local  legis- 
lation of  either  of  the  contracting  parties.  Why  should  tliis  discrimi- 
nation in  regard  to  local  legislation  be  applicable  only  to  Venezuela? 
Wliat  are  the  grounds  for  such  strange  interpretation? 

In  regard  to  conflicting  citizenship  the  precedents  and  opinions 
quoted  below  may  be  submitted,  deciding  the  point  always  in  favor  of 
the  country  against  which  the  claim  has  been  entered. 

Commissioner  Finlay  in  the  case  of  Hammer  et  al.  against  Venezuela 
states  the  following  : 

Whatever  rights  the  United  States  has  m  its  power  to  bestow  will  unquestionably  pass 
under  the  law  establishing  the  status  of  citizenship  in  favor  of  nonresident  aliens,  mcluding 

a  Page  54, 


64  0A8E    OF    HEIBS    OF   JEAN    MANINAT. 

the  right  to  take  property  by  descent  and  succession  and  the  right  to  prosecute  any  claim 
against  the  United  States;  but  more  than  this  cannot  be  done  without  interfering  with  the 
rights  of  other  states  and  involving  them  and  herself  in  conflicting  claims  of  the  most  absurd 
character.     (Moore,  p.  2460.) 

The  reasons  advanced  by  the  American  commissioner  wliicli  were 
approved  I)}'  the  umpire,  Count  Corti,  of  the  British-American  Claims 
Commission,  are  in  toio  appHcable  to  the  question  of  a  double  citizen- 
ship.    The  opinion  referred  to  is  the  following: 

To  treat  his  grievances  (the  claimant's  grievances)  against  that  other  sovereign  as  subjects 
of  international  concern  would  be  to  claim  a  jurisdiction  paramount  to  that  of  the  other 
nation  of  which  he  is  also  a  subject.  Complications  would  inevitably  result,  for  no  Gov- 
ernment would  recognize  the  right  of  another  to  interfere  thus  in  In^half  (»f  one  whom  it 
regarded  as  a  subject  of  its  own.  It  has  certainly  not  been  the  practice  of  the  British  Govern- 
ment to  interfere  in  such  cases,  and  it  is  not  easy  to  believe  that  either  Government  meant 
to  provide  for  them  b}-  this  treaty.     (Alexander  v.  U.  S.  Moore,  p.  2531.) 

The  same  rule  is  found  in  Cogordan  (Citizenship,  p.  39),  who  has 
called  attention  to  the  eminently  practical  spirit  of  the  English  Govern- 
nrent,  as  shown  in  the  correspondence  between  Lord  Malmesbury  and 
Lord  Cowley,  ambassador  in  Paris,  when,  under  date  of  March  13, 
1858,  he  states  that,  if  England  did  recognize  as  British  subjects  the 
children  born  in  England  of  foreign  parents,  she  did  not  pretend  to 
protect  them  as  such  against  the  authorities  of  the  country  of  such 
parents  claiming  them,  particularl}-  when  they  had  voluntarily 
returned  to  such  country;  or,  in  other  words.  Frenchmen  born  in 
England  would  be  protected  in  German}^,  Italy,  or  any  other  country 
except  France,  where  thcj  could  be  legally  called  to  serve  in  the  arm}^ 

TchernoiF  (Protection  des  Nationaux  Résidant  à  l'Étranger  p.  470) 
says: 

Any  person  having  a  double  citizenship  can  enjoy  but  one  within  the  territory  of  each 
of  the  states  which  hold  him  as  a  subject.     Such  is  the  practice  in  England  and  Switzerland. 

The  foregoing  opinions  agree  with  those  of  the  commissioner  of  the 
United  States  in  the  case  of  Elise  Lebret  before  the  Franco-American 
Commission,  above  mentioned.  Notice  should  be  taken  of  the 
opinions  of  Phillimore,  Blackstone  (Cooley's  Vol.  I,  p.  369)  1,  Hale's 
P.  C,  08,  Story's  Conflict  of  Law,  second  edition,  chajiter  IIL  .section 
48,  and  the  Century  Dictionary,  all  quoted  by  the  Hon.  Mr.  Pliimley 
in  his  learned  decision  as  umpire  in  the  case  of  Mathison  against 
Venezuela  before  the  Brit i.sh- Venezuelan  Commission  created  by  the 
Wasliington  protocol  of  February  13,  1903  (Venezuelan  Arbitrations, 
Ralston's  Report,  pages  433-434  and  435).  See  also  the  opinions  of 
the  above-mentioned  umpire  in  the  case  of  Stevenson  against  Vene- 
zuela (Moore,  p.  442  et  seq.)  and  Ralston,  umpire  of  the  Italian- 
Venezuelan  Commission,  in  the  case  of  Brignone,  Miliani,  and  Pog- 
gioli  against  Venezuela  (Venezuelan  Arbitrations  of  1903,  Ralston'q 
Report,  pp.  710,  754,  and  847). 


ADDITIONAL    OPINION    OF    VKNEZUELAN    COMMISSIONER.         <)5 

Thus  the  conflict  of  double  citizenship  has  boon  solved  l)y  eminent 
authorities,  establishinjij  that  in  tlio  cases  wliere  such  double  citizen- 
ship occurs  the  law  of  the  respondent  or  defendant  nation  prevails. 

In  the  event  of  conflict  of  laws  creating  double  citizeiisliip,  tliatof  respondent  nation  must 
control.» 

In  cases  of  double  citizenship  neither  country  can  claim  tiie  [)ei-sou  having  th(;  .same  as 
against  the  other  nation,  although  it  may  as  against  ail  other  countries.'' 

This  condition  of  double  citizenship  occurs  in  Pedro  Maninat,  born 
in  Venezuela  of  French  parents,  a  resident  of  Venezuela  inttil  the 
date  of  the  death  of  his  brother  Juan  Bautista  Maninat,  a  deserter 
from  tlie  military  service  of  the  class  of  1883,  in  France;  in  Juana 
Maninat  and  Clotilde  Maninat  de  Saldías,  both  born  in  Venezuela, 
according  to  their  own  confession  and  documents  produced;  in  Justina 
Maninat,  widow  Cosse,  and  Josefina  Maninat  de  Beguerisse,  who  liave 
not  established  their  birth  in  French  territor}^  as  it  is  indispensable 
to  do  before  this  commission.  The  presumption  in  the  case  of  the 
two  latter  is,  on  the  contrary,  that  they  were  born  in  Venezuela,  and 
that  the  husband  of  Josefina  Maninat,  Charles  Beguerisse,  .by  reason 
of  liis  birth  in  Puebla,  a  city  in  Mexico,  is  a  Mexican  citizen,  as  well  as 
his  wife.  I  beg  to  call  the  attention  of  the  honorable  umi)ire  most 
especially  to  the  fact  already  mentioned  that  from  the  documents  sub- 
mitted there  does  not  appear  that  Josefina  Maninat  de  Beguerisse, 
nor  her  husband  Charles  Beguerisse,  for  a  long  time  residents  of 
Guatemala,  claim  any  sum  whatever  from  the  Venezuelan  Govern- 
ment, nor  that  they  authorized  their  brothers  and  sisters  to  do  so. 

Justina  Maninat,  widow  of  Cosse,  has  recovered  her  Venezuelan 
nationality  since  the  death  of  her  husband— under  the  supposition 
that  he  was  a  French  citizen,  which  has  not  been  established — in  con- 
formity with  the  Venezuelan  laws,  which  control  in  case  of  confiict  of 
double  nationality,  according  to  the  opinions  and  decisions  above 
cited. 

In  view  of  the  foregoing,  I  hold  that  this  commission  h.:s  no  jurisdic- 
tion to  hear  and  decide  the  claim  entered  by  Pedro  Miuiinr.t  imd 
sisters,  as  their  Venezuelan  nationality  controls  in  the  conflict  of  double 
citizenship,  Venezuela  being  the  respondent  nation. 

The  plaintifi's  have  no  legal  rights  whatever  to  claim,  by  reason  of 
the  death  of  Juan  Bautista  Maninat,  damages  directly  suffered  by 
their  persons  and  property.  It  has  been  further  established  that 
Pedro  Maninat,  as  well  as  his  sisters,  all  of  wliom  are  of  age,  three  of 
the  sisters  being  married  and  for  some  years  absent  with  their  respec- 
tive husbands  from  Venezuelan  territory,  have  not  depended  for  their 
means  of  sustenance  upon  the  j)erson  and  life  of  Juan  Bautista  Miininat, 
but,  on  the  contrary,  each  and  every  one  of  them  has  had  and  still 

a  Brignone  case,  Ralston's  Report,  p.  710.         '<  Miliani  case,  Ralston 's  Report,  p.  754. 
S.  Doc.  533,  59-1 5 


66  CASE    OF    HEIRS    OF    JEAN    MANINAT. 

has  independent  means  of  living.  They  miojht  be  entitled  to  claim 
damufios  for  the  death  of  a  person,  if  there  is  a  party  responsible  for 
such  death,  whether  the  party  be  a  private  individual,  a  corporation, 
or  a  state,  in  case  the  damages  resulting  from  such  death  could  be 
properly  established.  Such  would  be  the  case  when  a  destitute  wife 
or  minors  or  other  persons,  either  ascendants  or  brothers  are  con- 
cerned and  the  proof  can  be  established  that  they  are  destitute  and 
suffer  material  damages  by  reason  of  the  wanton  killing  of  a  kinsman. 
These  grounds  for  action  are  lacking  in  the  present  claim,  and  they 
are  essential  in  order  to  warrant  the  indemnification  sought,  but  such 
damages  have  not  occurred,  nor  have  the  brothers  and  sisters  of  Juan 
Bautista  Maninat  established  the  facts  beyond  all  reasonable  doubt. 
Under  the  circumstances  the  present  claim  for  indemnification  lacks 
the  essenti;il  basis  of  such  claims,  the  daminim  emergens,  as  a  con- 
sequence of  the  death  of  Juan  Bautista  Maninat,  and  such  claim  can 
not  exist,  because  it  deals  with  brothers  and  sisters  who  did  not 
depend  for  their  living  upon  Juan  Bautista  Maninat,  nor  upon  his 
business  abilities  or  pecuniary  means. 

The  indirect  damages  which  the  mercantile  firm  of  Maninat  Broth- 
ers might  have  sustained  through  such  death  do  not  afiect  the  sis- 
ters, who  were  neither  partners  of  the  firm  nor  had  any  share  or  profits 
in  the  business.  Whatever  business  Pedro  Maninat  might  have  had 
as  an  active  partner  did  not  suffer  any  damages  because  of  his  broth- 
er's death,  as  it  appears  from  the  papers  submitted  that  at  the  time 
of  the  death  the  commercial  firm  was  bankrupt  and  that  the  surviving 
partner  was  compelled  to  admit  such  b::nkruptcy  in  view  of  the  state 
of  complete  insolvency  in  which  the  firm  had  been  for  some  time 
previous.  The  French  commissioner  has  acknowledged  this  to  be  a 
f^ct  in  his  opinion. 

Now,  in  regard  to  the  liability  which  it  h,  s  been  the  endeavor  to 
establish  ag„inst  the  VenezueLn  Government  for  the  wound — not  a 
very  serious  wound — received  by  Juan  BvUtista  M  ninat  at  Tina- 
quillo,  and  his  subsequent  death,  which  took  pi.  ce  twenty-eight  days 
after,  superinduced  by  the  diserse  c.  lied  traumatic  tetanus,  which  is 
not  necessarily  the  consequence  of  a  wound,  but  m.  y  be  contracted 
through  scvcnJ  causes,  generally  through  being  exposed  to  the  w..ter 
and  other  sources  of  infection,  I  beg  to  submit  again  the  arguments 
advanced  by  me  in  my  opinion  rendered  at  the  session  of  the  commi.s- 
sion,May  19,  1903,  which  I  send  herewith  translatetl  into  English,  and 
wherein  I  deny  such  liability  as  wholly  luifounded,  and  entirely  reject 
the  merits  of  the  cL.im  for  indemnification  for  2,000,000  bolivars 
against  the  Venezuelan  Government. 

NoRTHFiELD,  Vt.,  Fehnuiry  3,  1905. 


ADDITIONAL    OPINION    OF    FRENCH    COMMISSIONER.  67 

ADDITIONAL.  OPINION  OF  THE  FRENCH  COMMISSIONER. 

After  having  read  the  additional  memoir  presented  by  my  honora1)le 
colleague,  I  can  only  maintain  the  conclusions  of  the  prior  memoir.  I 
will  add,  however,  some  observations  which  seem  to  mo  allow  on  my 
part  certain  consideration  of  this  additional  memoir. 

In  the  first  place  Doctor  Paul  remarks  that  one  of  the  five  heirs  of 
the  late  Jean  Maninat,  Madame  Jose])hine  Beguerisse  (née  ^hlninat), 
has  not  presented  any  claim  against  Venezuela.  I  know  this,  but 
since  the  four  other  heirs  have  presented  a  claim  the  default  of  the 
fifth  invalidates  the  claim  in  no  wise.  It  will  belong  only  to  the 
French  Government  if  the  umpire  accords  an  indemnity  to  the  Man- 
inat heirs  to  divide  it  conformably  to  French  laws,  among  those  of  the 
latter  who  may  have  availed  themselves  of  their  rights  at  th(^  ])ro])er 
time. 

In  the  second  place,  my  honorable  colleague,  returning  to  the  ques- 
tion of  nationality,  declares  that  Mr.  Pierre  Maninat  and  his  sisters, 
born  in  Venezuela,  have  not  according  to  the  protocol  of  1902  a  right 
to  present  a  claim  against  the  Venezuelan  Government.  With  regard 
to  tliis,  I  coidd  onh"  re])roduce  the  argument  already  presented  in  my 
memoir.  I  request,  moreover,  the  umpire  to  kindly  revert  to  text  of 
the  aforesaid  protocol,  to  which  in  section  1,  page  4,  of  his  additional 
memoir,  Doctor  Paúl  gives  an  interpretation  which  I  can  not  admit. 
Article  1  speaks  in  efl'ect  merely  of  claims  presented  "b}^  the  French- 
men." This  term  is  ver}"  comprehensive — ''Frenchmen."  It  is  not 
merely  the  "French  citizens;"  there  are  also  French  subjects,  such  as 
the  Algerians  or  French  protégés,  such  as  the  Tunisians — in  a  word,  all 
those  to  whom  the  French  Government  extends  its  protection,  because 
they  are  French  according  to  French  laws.  The  protocol  says  in  no 
way  that  it  is  "indispensable  to  prove  that  the  nationality  of  the 
claimants  was  solely  and  exclusively  French."  I  have  then  been  able 
to  conclude  with  justice  that  it  sufficed  that  the  French  Government 
consider  an  individual  as  French  and  deliver  to  liim  a  certificate  of 
French  nationality  that  this  individual  be  qualified  to  Ijenefit  from 
the  provisions  of  the  protocol  of  February  19,  1902.  The  precedents 
cited  by  my  colleague  prove  only  that  there  is  not  on  this  point  any 
fixed  rule  and  that  international  law  is,  as  almost  always,  variable.  I 
could  call  to  mind  many  examples  of  a  contrary  jurisj)rudence  without 
referring  to  distant  date. 

I  have  spoken  of  the  case  of  Mr.  Charles  Piton.  I  maintain  that  the 
case  is  analogous  to  the  present  case.  Mr.  Piton  was  born  in  AVnezu- 
ela  of  French  parents,  one  of  wliich  was  born  there  himself.  Mr. 
Piton  did  not  regularize  his  military  position  in  France  until  long 
after  the  age  required  by  the  service.  Mr.  Piton  has  even  exercised 
public  Venezuelan  functions  at  Venezuela  and  in  foreign  lands  where 
he  has  been  a  Venezuelan  consul,  and  yet  my  colleague  has  admitted 


68  OASE    OF    HEIRS    OF    JEAN    MAXINAT. 

that  he  was  of  French  nationahty  and  that  there  could  be  given  to  him 
a  large  indemnity. 

In  another  analogous  case — the  Massiani  aíTair — (claim  presented 
by  heirs,  enjoying  two  nationalities,  of  a  Frenchman  who  was  exclu- 
sively French),  the  French- Venezuelan  mixed  commission  constituted 
by  the  protocol  of  Wasliington  and  presided  over  in  1903  at  Caracas  by 
Mr.  Filtz,  umpire,  accorded  also  the  indenmity  demanded. 

I  ought  to  call  to  the  attention  of  the  umpire  the  inconvenience 
which  could  be  presented  from  the  point  of  view  of  the  fixity  of  inter- 
national law,  which  seems  to  disturl)  my  colleague  so  much,  by  the 
establishment  of  two  different  jurisprudences,  not  only  by  two  com- 
missions so  analogous  and  so  boimd  together,  but  even  by  the  same 
commission. 

Doctor  Paúl  seems  to  desire  to  refuse  to  Pierre  Maninat  the  char- 
acter of  a  Frenchman,  but  Pierre  Maninat  is  French  according  to 
French  law,  and  the  competent  French  authorities  having  delivered 
to  liim  the  necessary  certificate  the  commission  can  not  deny  French 
nationality  to  this  claimant.  I  beg  the  umpire  to  take  notice  that  I 
do  not  refuse  in  any  way  to  admit  that  Pierre  Maninat  enjoys  e(|ually 
Venezuelan  nationality  according  to  the  Venezuelan  law.  I  am  con- 
tent to  maintain  that,  being  French  (it  makes  no  difference  to  me  if 
he  has  two  nationalities),  he  can  profit  from  the  provisions  of  the  j)ro- 
tocol  of  19th  of  February,  1902. 

In  the  third  place  my  colleague  relies,  in  order  to  reject  the  Mani- 
nat claim  upon  the  fact  that  Jean  ^Maninat  has  not  made  the  claim  in 
form  against  Venezuela.  It  will  suffice  for  me  to  call  the  attention 
of  the  umpire  again  to  the  reading  of  the  letter  of  Jean  Maninat  of 
April  26,  1898,  in  which  the  interested  party  declares  that  not  only 
he  but  the  whole  French  colony  demands  justice.  I  will  add  that 
his  death  coming  ([uickly  has  alone  prevented  him  from  forming  his 
dossier.  Besides,  this  death  itself  making  the  princi]>al  subject  of 
the  claim,  one  will  grant  that  Jean  Maninat  would  with  difficulty 
have  been  al)le  to  make  his  claim  himself. 

In  the  fourth  place  my  colleague  quotes  decisions  rendered  within 
the  English  and  Italian- Venezuelan  commissions.  I  am  not  ac(|uainted 
with  the  cases  in  cpiestion  and  conscfiuently  can  not  judge  of  their 
degree  of  analogy  with  that  ]>efore  us.  In  a  general  way  I  consider 
tliat  in  a  matter  of  arbitration  precedents  have  no  value.  K(|uity, 
good  sense,  and  the  terms  of  the  protocol  are  the  only  rules  for  the 
conduct  of  an  arbitrator,  who  is  not  bound  to  conform  to  the  con- 
tradictory opinions  of  his  ])redecessors  any  more  than  to  tlie  i)¡irticu- 
lar  law  of  the  States,  as  the  protocols  of  Washington  \\i\\c  («xprcssly 
declared. 

In  the  fifth  ])lace  Doctor  Paúl  luaiiilains  that  tlu>  heirs  of  Jean 
Maninat  have  no  right  to  juake  a  chiiin  for  I  he  (h-ath  of  (luir  hiolher, 


OVINION    í)F    UMPIRE.  69 

whicli  would  not  have  caused  Ihein  direct  damaj^c.  I  will  merely 
reply  that  Pierre  Maninat  was  associated  with  his  brother  in  the  iirni 
Maninat  Brothers,  and  that  the  death  of  his  elder  brother  will  culmi- 
nate the  ruin  of  this  house  of  commerce.  Is  not  this  a  direct  dama<ie? 
Besides,  is  not  the  death  alone  under  such  conditions  of  a  brother  of 
whom  one  is  the  heir,  even  if  one  is  not  his  partner,  necessarily  a  cause 
of  direct  damage? 

Finally,  I  maintain  my  opinion,  supported  by  the  declaration  of  the 
Venezuelan  doctor,  and  upon  the  very  sense  of  the  words  that  the 
wound  was  indeed  the  cause  of  the  death.  It  is  evident  that  the  infec- 
tion would  not  have  been  produced  and  would  not  have  brought  on 
traumatic  tetanus  if  there  had  not  been  any  wound. 

NoRTiiFiELD,  February  6,  1905. 


OPINION  OF  THE  UMPIRE. 

Juan  Maninat  was  born  at  Tarbes,  France,  November  4,  1864,  and 
died  of  traumatic  tetanus  May  13,  1898,  at  Valencia  in  Venezuela, 
unmarried,  leaving  as  next  of  kin  Rosa  Clotilde  Maninat,  born  at 
Valencia  in  Venezuela  June  2,  1859,  wife  of  Eulogio  S.  Saldías,  a 
Peruvian,  and  now  residing  at  Lima,  Peru;  Josefina  Maninat,  resident 
in  Guatemala,  said  to  have  been  born  in  France,  the  wife  of  Charles  de 
Beguerisse,  who  was  born  in  Mexico  of  parents  having  French  nation- 
ality; Justina  Maninat,  said  to  have  been  born  in  Tarbes,  France, 
who  was  married  in  Panama  to  Charles  Joseph  Cossé,  the  latter  hav- 
ing been  born  at  Bois-Colombes,  France,  August  9, 1856,  now  deceased, 
the  said  Justina  residing  at  Lima,  Peru;  Juan  Pedro  de  Jesús  Maninat, 
born  at  Valencia  in  Venezuela,  December  29,  1863,  also  Juana 
Maninat,  born  in  Valencia  and  now  residing  in  Lima,  Peru.  The 
father  and  mother  of  these  Maninat  heirs  were  both  of  French  nation- 
ality and  are  both  deceased.  Pedro  resided  in  France  from  the  time 
when  he  was  a  year  old  to  his  nineteenth  year,  since  which  time  until 
recently  he  has  resided  and  done  business  in  Venezuela.  Juan  came 
to  Venezuela  at  some  time  not  important  to  this  incpiirv,  and  later 
entered  into  a  mercantile  relation  with  Pedro,  and  they  established 
their  principal  house  at  Valencia  and  had  branches  at  Tinaquillo  and 
San  Carlos.  The}^  were  engaged  in  these  enterprises  at  the  time 
of  the  injury  to  Juan,  hereinafter  stated,  but  had  suffered  seriously 
from  some  compulsory  loans  to  and  requisitions  by  both  the  revo- 
lutionary party  and  the  Government  troops,  and  they  also  suffered 
much  from  theft  and  pillage  and  from  injury  to  their  property  by  the 
soldiers  alike  of  the  revolutionary  forces  and  of  the  Government. 

April  15,  1898,  the  Government  troops  stationed  at  Tinacpiillo 
were  under  the  command  of  General  Vizcarrondo,  chief  of  staif  of 
General  Crespo.     An  ollicer  under  General  Vizcarrondo  on  that  ilay 


70  CASE    OF    HEIRS    OF   JEAN    MANINAT. 

demanded  of  Juan  Maninat  certain  supplies  for  his  army  in  the  nature 
of  a  rec|uisition.  Maninat  refused  the  requisition  except  on  the  terms 
that  an  order  he  signed  l)y  the  t¡:eneral,  and  for  tlie  purpose  of  obtain- 
in^i;  lilis  order  Maninat  sent  an  onii)lovee  to  the  general  at  his  heail- 
quarters.  This  employee  Avas  ])a(lly  treated  and  was  sent  hack  to 
Maninat  without  the  order  re(| nested  hut  with  pereni¡)tory  orders  to 
Juan  Maninat  to  present  himself  at  once  before  General  Vizcarrondo  at 
his  heailquarters,  which  order  he  obeyed.  While  Maninat  was  at  the 
headquarters  of  the  general  and  in  his  presence  he  was  struck  several 
times  with  the  back  of  a  machete  by  oilicers  of  the  national  army, 
was  ])laced  under  arrest  by  the  general  and  while  under  arrest  and  on 
his  way  to  the  place  of  his  confinement  he  was  given  a  severe  nuichete 
wound  on  the  side  of  the  cheek  by  one  of  the  oilicers  then  present. 
He  was  kept  in  close  confinement  by  the  military  authorities  at  Tina- 
quillo  and  as  late  as  the  IStli  of  the  month  had  not  been  permitted 
to  meet  his  brother  or  the  other  mend)ers  of  the  family  who  had  come 
from  Valencia  to  see  and  to  assist  him. 

The  minister  of  foreign  affairs  for  Venezuela  was  oilicially  informed 
of  this  matter  by  the  French  legation  at  Caracas  on  April  IS,  and  it 
was  oflicially  asked  that  he  be  released  from  confinement,  that  there 
be  an  innnediate  investigation,  a  ])roper  reproof  administered  to 
General  ^'izcarrondo  by  the  Venezuelan  Government,  antl  proper  satis- 
faction made  to  the  injured  man. 

On  April  19  Maninat  was  released  from  confinement  on  intervention 
from  Caracas.  On  April  24,  in  a  letter  from  Maninat,  he  speaks  of 
himself  as  "a  little  recovered  of  his  wound"  and  able  to  write  to  Con- 
sul Quiévreux,  chargé  d'affaires  of  France,  relating  the  occurrences  of 
April  15  and  those  which  followed.  In  this  conununication  he  named 
the  officer  who  inflicted  the  machete  wound.  All  the  facts  necessary 
to  a  com])lete  history  of  the  case  were  easily  ascertainable  at  that  time. 
No  reproof  was  administered  to  General  Vizcarrondo  or  to  his  oilicers 
and  no  action  was  taken  by  Venezuela  in  reference  to  the  punishment 
of  the  oilicer  who  inflicted  the  machete  _wound  and  no  n'jiaration  was 
offered  to  France  or  to  Maninat. 

Pedro  endeavored  for  a  while  to  maintain  the  business  of  the  (H)m- 
pany,  but  it  resulted  in  failure  and  bankruptcy,  and,  later,  the 
imprisonment  of  I^edro,  and  his  release  on  terms  that  he  abandon, 
permanently,  a  residence  in  Veneziu'la.     He  is  now  in  Guatenuda. 

There  is  no  record  proof  that  any  of  these»  heirs  were  born  in  France 
except  in  the  case  of  Juan.  In  the  certilicale  of  marriage,  or  the 
record  thereof,  of  Justina,  there  is  a  declaration  that  she  was  born  in 
Tarbes,  France.  Neither  Josefina  nor  her  husband  has  ai)peared  as 
claimant  or  in  an3'way  asserted  or  presented  any  claim  against  \'ene- 
zuela  or  any  right  to  claim  anything  because  of  the  injur}  to  or  death 
of  Juan. 


OPINION    OF    UMPIRE.  7l 

In  the  joint  letter  of  Clotilde  Saklías,  Justina  Maninat,  widow 
Cossé,  and  Juana  Maninat,  of  date  1903,  indited  for  use  before  the 
arbitrators  at  Caracas,  it  is  stated  that  Justina  and  Josefina  were  born 
in  France.  In  the  letter  of  Pedro  to  the  minister  of  France  at  Caracas, 
of  date  July  24,  1903,  he  states  that  Justina  and  Josefma  are  French  by 
birth  and  have  married  Frenchmen.  The  records  of  both  countries 
are  silent,  so  far  as  appears  in  this  tribunal,  concerning  the  birthplace 
of  these  two  ladies. 

There  is  no  proof  that  any  of  the  brothers  or  sisters  of  Juan,  except 
Pedro,  ever  received  any  benefits  from  or  were  in  anyway  dependent 
upon  or  connected  with  Juan. 

The  honoraV)le  commissioners  failing  to  agree  as  to  some  of  the  facts 
in  tliis  case,  and  likewise  failing  to  agree  upon  the  rule  to  be  drawn 
from  those  facts  and  applied,  joined  in  sending  this  claim  to  the  umpire 
for  his  decision.  They  have  aided  the  um})ire  by  very  able  opinions, 
stating  the  reasons  for  their  respective  holdings,  and  they  have  also 
given  valued  assistance  to  the  umpire  in  their  answers  to  his  written 
questions. 

The  umpire  is  met  at  the  outset  with  the  conflicting  claims  of  the 
honorable  commissioners  concerning  the  nationality  of  the  claimants 
and  its  importance  as  a  determinative  factor  in  the  case.  The  honor- 
able commissioner  for  France  is  of  the  opinion  that  it  is  only  necessary 
to  establish  the  French  citizenship  of  Juan  Maninat  at  the  time  of  his 
death  to  give  jurisdiction  to  this  tribunal.  The  honorable  commis- 
sioner for  Venezuela  is  eciually  certain  that  there  must  be  a  French 
citizen  in  esse,  and  having  a  demand  for  indemnity  because  of  damages 
sufl'ered  on  account  of  the  injury  to  and  death  of  Juan,  in  order  that 
this  mixed  commission  can  have  competency  to  make  an  award  in 
relation  thereto;  hence,  to  settle  this  jurisdictional  question  is  of 
primary  importance.  It  is  first  to  be  observed  that  Juan  Maninat  is 
dead.  lie  is  not.  Therefore,  a  tribunal  organized  under  and  in  virtue 
of  the  convention  of  February  19,  1902,  that  it  "might  examine 
demands  for  indemnity  presented  by  Frenchmen  for  damages  sus- 
tained in  Venezuela,"  does  not  exist  because  of  damages  which  have 
been  suffered  in  Venezuela  but  only  in  reference  to  damages  suffered 
in  Venezuela  by  Frenchmen  who,  as  such,  are  claimants  before  this 
tribunal.  In  other  words,  it  is  not  the  injury  done  to  Juan  Maninat 
alone,  but  also  damages  suffered  by  Frenchmen,  if  such  there  be, 
through  and  because  of  the  injury  to  and  death  of  Juan,  which  give 
place  to  a  claim  under  this  protocol. 

This  particular  reclamation  rests  upon  the  right  of  the  next  of  kin  of 
Juan  to  present  a  claim.  Their  ability  to  do  so  will  dojicnd  uj^ou  the 
character  of  their  citizenship;  if  any  be  French  the  claim  stands;  if 
all  be  Venezuelan  there  is  no  jurisdiction. 


7 'J  CASE    OF    HEIRS    OF   JEAN    MANINAT. 

The  opinion  of  the  umpire  given  in  heirs  of  Stevenson  v.  Venezuela, 
found  in  Ralston's  Venezuelan  Arbitrations  of  1903,  438,  is  referred  to 
and  the  attention  of  the  honorable  commissioners  to  this  opinion  is 
respectfully  requested.  It  is  based  on  a  protocol  of  similar  character 
in  this  regard,  although  it  might  be  held  to  present  a  greater  latitude 
to  the  claimant  than  the  one  now  under  consideration.  The  authori- 
ties referred  to  therein  are  relied  upon  by  the  umpire  as  sustaining  him 
in  this  decision. 

The  honorable  commissioner  for  France  urges  that  in  default  of 
Frenchmen  lawfully  entitled  to  the  award,  the  national  treasury  is 
comi)etent  to  receive  the  same.  Since  this  case  is  disposed  of  without 
reaching  this  proposition,  the  umpire  does  not  stop  to  discuss  it. 

The  language  of  the  protocol  is  the  work  of  skilled  and  erudite  dip- 
lomatists. Every  word  is  weighed  and  its  force  and  significance  arc 
definite  and  certain.  The  language  used  in  other  protocols  and  its 
application  by  other  tribunals  are  with  them  matters  of  common 
knowledge.  The  restrictive  interpretation  given  by  the  umpire  in  this 
opinion  follows  a  well-defined  and  quite  generally  constant  line  of 
decision  by  arbitral  tribunals  whenever  the  i|uestion  has  been  raised 
and  the  terms  of  the  convention  were  in  spirit  similar.  It  follows,  that 
if  a  different  rule  had  been  desired  by  the  high  contracting  parties,  they 
would  have  employed  words  susceptible  of  a  difl'erent  interpretation. 
They  certainly  would  not  have  made  a  different  ruling  impossible. 
To  hold  that  any  other  than  the  national  quality  of  the  person 
presenting  the  claim  is  to  determine  the  jurisdiction  of  this  commission, 
is  to  declare  that  which  is  impossible  under  the  language  here  used. 
Nothing  is  easier  than  to  walk  in  the  path  so  well  defined  by  the  able 
minds  who  planned  and  built  it.  Hence  the  rule  here  laid  down  that 
to  be  wdtliin  the  jurisdiction  of  this  tribunal  the  claim  nmst  be  presented 
by  or  for  a  Frenchman,  in  esse,  who  has  sustained  damages  in  "N^ene- 
zuela. 

For  the  rules  of  construction  and  interpretation  which  have  been  of 
great  service  to  the  umpire,  see  Ralston's  Venezuelan  Arbitrations  of 
1903,  ]>ages  352  to  355,  both  inclusive. 

It  is  agreed  that  Juan  Maninat  was  of  French  nationality.  His 
sisters  Rosa  Clotilde  and  Juana  and  his  brother  Juan  Pedro  were 
unquestionably  of  Venezuelan  birth.  Are  Josefina  Beguerisse  and 
Justina,  or  is  either  of  them,  of  undoubted  French  nationality?  The 
um])ire  holds  that  the  burden  of  establishing  this  essential  fact  is  with 
the  claimant;  that  such  nationality  is  not  to  be  assumed  or  conjec- 
tured, but  proved.  No  authority  needs  to  be  quoted  to  sustain  either 
of  those  propositions.     They  are  elementary. 

In  this  case  there  is  no  record  proof  concerning  the  place  of  birth  of 
either  Josefina  or  Justina,  and  there  is  no  explanation  made  for  its 
absence. 


OI'INION    OF    UMPIRE.  73 

The  case  of  Justina  will  first  be  considered. 

In  the  record  of  her  marriage  she  is  set  down  as  having  been  born 
in  Tarbes,  France.  This  is  a  declaration  of  fact  essential  to  the  record, 
made  at  a  time  when  there  could  have  been  no  ulterior  pur])ose  to  sub- 
serve. In  the  joint  written  statement  of  Justina,  Clotilde,  and 
Juana,  made  in  1903  for  tlie  use  of  the  arbitrators  at  Caracas,  the 
birth  of  Justina  is  placed  in  France.  In  the  letter  of  Pedro  to  the 
minister  of  France  at  Caracas,  of  date  July  24,  1903,  he  states  that 
Justina  is  by  birth  French. 

Justina  married  Charles  Joseph  Cossé,  who  was  unquestionably 
French,  which  fixed  her  nationality  as  French  during  his  life,  and  by 
French  law  this  nationality  continued  after  the  death  of  her  husband, 
as  she  has  done  notliing  since  to  divest  her  of  such  nationahty.  By 
Venezuelan  law  if  she  were  of  Venezuelan  birth  and  Venezuelan  at  the 
time  of  her  marriage  to  Cossé  her  Venezuelan  nationality  is  restored 
to  her  after  the  death  of  her  husband.  But  there  is  no  prooi  that  she 
ever  was  Venezuelan.  There  is  incontestable  proof  that  she  was 
French  by  marriage  and  b}"  origin,  if  not  bj^  birth.  To  strip  her  of 
her  French  nationality  once  attained  by  the  law  of  both  countries 
requires  definite  and  satisfactory  proof.  If  she  were  of  Venezuelan 
birth,  the  respondent  Government  could  easily  have  produced  the  rec- 
ord, as  Valencia  is  near  Caracas,  and  its  records  are  easy  of  access. 

In  view  of  all  the  facts  affirmative  and  negative  the  umpire  has 
reached  a  con^nction  of  moral  certainty  that  Justina  Maninat  Cossé  is 
of  French  nationality  and  competent  to  appear  as  a  claimant  before 
this  tribunal. 

Concerning  Josefuia  Maninat  Beguerisse,  wife  of  Charles  de  Begue- 
risse,  it  is  sufficient  to  say  that  she  has  not  presented  any  claim  before 
this  commission  and  is  not  in  any  sense  by  any  act  or  authority  of 
hers  a  party  thereto.  She  has  apparently  refrained  from  asking  the 
intervention  of  France  in  her  behalf  in  this  matter,  and  her  right  to  do 
so  is  wholly  academic,  and  therefore  unimportant  to  this  tribunal. 

It  remains  to  determine  whether  the  other  next  of  kin,  being  with- 
out question  French  by  French  law,  and  Venezuelan  by  Venezuelan 
law,  have  rightful  place  before  this  commission. 

A  treaty  is  a  solemn  compact  between  nations.  It  possesses  in 
ordinary  the  same  essential  qualities  as  a  contract  between  individuals, 
enhanced  by  the  weightier  quality  of  the  parties  and  by  the  greater 
magnitude  of  the  sul)ject-matter.  To  be  valid,  it  imports  a  mutual 
assent,  anrl  in  order  that  there  may  be  such  mutual  assent  there  must 
be  a  similar  understanding  of  the  several  matters  involved.  It  can 
never  be  what  one  party  understands,  but  it  always  must  be  what 
both  parties  understood  to  be  the  matters  agreed  upon  and  what  in 
fact  was  the  agreement  of  the  parties  concerning  the  matters  now  in 
dispute.     In  tliis  case  did  Venezuela  agree  in  the  protocol  that  France 


74  CASE    OF    HEIRS    OF    JEAN    MANTNAT. 

alone  should  iianip  those  who  are  Frenchmen,  or  did  France  as:reo  in 
the  i^rotocol  that  Venezuela  alone  should  make  the  selection;  or  does 
the  ])rotoc()l,  bcino;  an  af^reement.  imply  that  the  word  Frenchman  as 
there  used  shall  mean  such  only  as  are  recognized  by  the  laws  of  both 
countries?  It  is  evident  that  the  high  contracting  parties  agreed  on 
this  point,  and  yet  both  partitas  knew  that  there  was  in  fact  a  very 
essential  difference  in  the  holding  of  each  country  upon  that  question. 
How,  then,  could  they  reach  a  point  of  agreement?  Only  by  meeting 
upon  a  ground  common  to  both;  and  that  common  ground  is  the  plain 
where  b}"  the  laws  oí'  both  countries  the  claimant  is  a  Frenchman. 

This  process  of  reasoning  seems  to  dispose  of  all  genuine  doubt  as 
to  what  is  meant  by  this  term  as  used  in  the  protocol;  yet  were  there 
room  for  doubt  the  ordinary  rules  of  interpretation  would  be  eilicient 
aids.  Among  others,  there  is  the  rule  o":  interpretation  that  where  the 
agreement  is  susceptible  o1  two  interprétations  that  interpretation  is 
to  be  taken  which  is  least  onerous  upon  the  party  who  nuist  render 
the  service  or  suffer  the  loss  under  the  agreement. 

(Woolsey,  Intro.  Int.  Law,  sec.  113.  Bouvier  Law  Diet.,  vol.  1, 
p.  124.  lb.,  p.  1107;  ib.,  p.  429;  ib.,  416.  Bouvier  Law  Diet.,  vol.  1, 
p.  1106,  citing  71  Wisconsin,  177.) 

In  a  conflict  of  laws  îis  to  nationality  the  law  of  the  place  of  domicile 
should  ])revLÍl.  Such  wi:s  the  opinion  of  the  umpire  in  the  M.-thison 
case  found  in  R^lston's  Venezuelan  Arbitrations  of  1903,  pr.ge  429, 
wherein  are  found  his  reasons  therefor  ;  nd  the  authorities  siqiport- 
ing  them,  to  which  he  respectfully  refers  without  further  r.llusiou. 
A  similar  holding  b}^  him  is  found  in  the  Stephenson  case,  same 
volume,  piige  438,  and  to  that  case,  his  reasons  there  given  and  his 
authoriti(>s  there  quoted  or  cited,  he  respectfuU}'  mvites  attention. 
*  *  *  So  far  as  they  apply  he  adopts  them  to  save  unnecessary 
amplification  here.  He  would  add  a  quotation  from  Bluntschli  in 
a  note  which  he  places  in  his  Droit  Public  Codifié,  sec.  374,  wherein 
he  says  : 

Contrary  to  m}'  former  opinions,  I  think  to-day  tliat  in  case  of  conflict  of  law  one  ought, 
in  favor  of  the  liberty  of  emigration,  to  accord  the  preference  to  the  nationality  of  fact — 
that  is  to  say,  to  that  which  unites  itself  to  the  domicile.o 

When  by  the  law  of  the  respondent  Government  the  claimant  is  a 
Venezuelan,  France  may  not  intervene,  as  to  do  so  would  make  her 
law  superior  to  the  law  of  Venezuela,  which  is  not  permissible  as 
between  two  sovereign  nations.  The  right  of  Venezuela,  as  the 
respondent  Goverrmient,  to  regulate  her  own  internal  affairs  and  to 
determine  who  are  her  citizens,  involving  mutual  ])rotection  and 
support,  is  too  essential  an  attribute  of  sovereignty  to  be  invaded  or 

a  Contrairement  à  mes  opinions  antérieures,  je  pense  aujourd'hui  (|uVn  cas  de  collision 
on  doit,  en  faveur  de  la  liberté  d'éinigralii)ii,  lurorder  la  préférence  u  la  nationalité  de  fait, 
c'est-à-dire  à  celle  qui  s'unit  au  domicile. 


OPINION    OF    UMPIRE.  75 

disturbed.  If  the  treaty  bore  unmistakable  evidence  that  this  attri- 
bute of  sovereignty  hiid  been  abdicated,  it  would  be  the  duty  of  this 
tribiniîJ  to  act  accord iufijly,  but  it  bears  no  such  evidence. 

Wlien  the  nation  insists  that  one  who  is  native  to  the  land  shall 
under  ordinar}»-  circumsti:nces  be  a  citizen,  it  is  such  a  reasonable 
requirement  thnt  all  nations  should  rest  content.  To  i:ll  the  world 
but  Venezuela,  France  may  follow  each  succeeding  generation  born 
in  Venezuela,  but  of  French  origin,  so  long  as  her  affections  dictate 
or  her  laws  require  or  permit,  but  to  Venezuela,  where  the  father 
established  his  domicile,  raised  his  roof-tree,  and  reared  his  famil}^, 
the  sons  and  daughters  there  born  are  Venezuelans  to  all  the  world, 
until  by  emigration  and  selection  they  have  foresworn  allegiance  to 
their  native  h:nd  and  sworn  allegiance  to  some  other. 

In  this  protocol  France  is  permitted  to  intervene  onl}-  on  behalf  of 
Frenchmen  who  are  recognized  as  such  by  the  Liws  of  Venezuela, 
and  whatever  equities  may  exist  between  the  claimants  and  Vene- 
zuela, none  can  be  considered  by  this  tribunal  except  those  which  are 
thus  presented. 

Pedro  ^laninat  was  born  in  Venezuela,  passed  a  portion  of  his 
minority  in  France,  attained  his  majority  in  Venezuela,  and  there 
remained  l)y  choice  until  several  j^ears  after  the  h;ippcning  of  the 
events  giving  rise  to  tliis  reclamation.  Nothing  which  he  has  done 
since  in  the  way  of  asserting  French  nationality"  affects  his  national 
quality  at  the  time  when  this  claim  had  its  inception,  since  his  right 
to  appear  in  this  tribunal  is  dependent  upon  the  fact  that  he  was  a 
Frenchmr.n  when  the  injury  was  suffered  of  which  he  complains,  and 
a  Frenchm-.n  when  this  treaty  was  perfected. 

Rosa  Clotilde  and  Juana  are  either  Venezuelans  or  Peruvians. 
They  are  not  French  in  the  meaning  ascribed  to  that  term  by  the 
umj)ire. 

In  the  opinion  of  the  umpire,  therefore,  Justina  Maninat  (^ossé  is 
the  only  next  of  kin  of  Juan  who  imder  the  protocol  of  February  19, 
1902,  has  that  quality  of  French  nationality  which  permits  a  claim 
for  indemnity  before  this  commission  because  of  the  injury  to  and 
death  of  her  brother  Juan. 

Although  alien  born  Juan  Maninat  had  a  right  imder  the  laws  of 
Venezuela  to  the  same  protection  as  is  granted  to  its  nationals.  He 
had  promptly  complied  with  the  several  military  exactions  consequent 
upon  the  disturbed  condition  of  the  nation,  and  in  requiring  the  pro- 
duction of  an  order  before  complying  with  the  requisition  made  u])on 
him  at  this  particular  time  he  was  taking  only  a  proper  precaution. 
Wlien  he  entered  the  presence  of  the  V(>nezuelan  general  it  was  the 
duty  of  that  general  to  throw  around  him  the  protection  of  the  Gov- 
ernment and  to  make  his  person  while  there  safe — absolutely  saf{\ 
When  he  was  wounded  under  the  eye  and  witliin  the  power  of  this 


76  CASE    OF   HEIRS    OF   JEAN    MANINAT. 

general  a  gross  outrage  liad  been  ])ermitte(l,  tho  office  of  the  com- 
manding generül  had  boon  perverted  or  set  at  naught,  and  the 
respondent  Government  luiving  intrusted  this  general  to  hold  that 
office  and  stand  in  its  stead  in  that  connnunity  is  responsible  for  the 
unla^\^ul  deeds  done  or  suffered  to  be  done  by  him.  The  ])resence 
of  the  national  army  and  of  an  officer  high  in  connnand  should  have 
brought  to  that  village  and  to  all  of  its  inhal)itants  a  sense  of  perfect 
security;  that  instead  it  brought  to  Juan  Maninat  threats,  harsh 
treatment,  imprisonment,  and  wounds,  is  clearly  established.  There 
results  unquestioned,  undebatable  responsibility  in  the  respondent 
Government.  The  extent  of  that  responsibility  alone  remains  to 
be  determined. 

Notwithstanding  the  apparent  convalescence  of  Juan  from  his 
wound  of  May  15,  the  joint  certificate  of  his  two  attending  ph3'sicians, 
asserting  his  death  from  traumatic  tetanus  is  proof  that  the  conva- 
lescence was  apparent  only.  The  honorable  connnissioner  for  Vene- 
zuela speaks  correctly  of  many  causes  for  tetanus  especially  existing 
in  torrid  countries,  but  he  has  named  no  instance  where  traumatic 
tetanus  has  been  certified  by  reputable  ph3^sicians,  except  the  primary 
cause  was  a  wound  or  an  external  injury  of  the  nature  of  a  wound. 
The  very  name  traumatic  forbids.  It  is  the  adjective  form  'of  the 
noun  trauma.     Of  trauma  the  Century  Dictionary  has  this  definition: 

1.  An  abnormal  condition  of  the  living  body  produced  by  external  violence,  as  distin- 
guished from  that  produced  by  poisons,  zymotic  infections,  bad  habits,  and  other  less 
evident  causes;  traumatism;  an  accidental  wound  as  distinguisiied  from  a  wound  caused 
by  the  surgeon's  knife  while  in  operation.  2.  External  violence  producing  bodily  injury: 
the  act  of  wounding,  or  infliction  of  a  wound. 

Traumatic. — (1)  Of  or  pertaining  to  wounds:  as  traumatic  inflammation.  (2)  Adapted 
to  the  cure  of  wounds;  vulnerar}':  as  traumatic  balsam.  (3)  Produced  by  wounds:  as 
traumatic  tetanus,  etc. 

Traumatism. — Any  morbid  conditions  produced  by  wound,  *     *     * 

Tetanus.— It  is  occasioned  either  by  exposure  to  cold  or  by  some  irritation  of  the  nerves 
in  consetjuence  of  local  injur}'  by  puncture,  incision,  or  laceration;  hence  the  distinction  of 
tetanus  into  idiopathic  and  traumatic. 

Lacerated  wounds  of  tendinous  parts  prove  in  warm  climates  a  very  frequent  source  of 
these  complaints.  In  cold  climates,  as  well  as  in  warm,  lockjaw  (in  whidi  the  spasms  are 
confined  to  the  muscles  of  the  jaw  or  throat)  sometimes  arises  in  consequence  of  the  ampu- 
tation of  a  limb  or  from  lacerated  wounds. 

Tetanic  affections  which  follow  the  receipt  of  a  wound  or  local  injury  usually  prove 
fatal.     *  .  *     *     It  is  usually  the  sequel  of  wounds  and  injuries. 

Witthaus  and  Becker,  in  their  Medical  Jurisprudence  of  Forensic 
Medicine,  Toxicology,  vol.  1,  page  513,  say  that — 

Tetanus  is  an  infective  bacterial  disease,  afl'ecting  chiefly  the  central  nervous  systi'm  and 
almost  always,  if  not  always,  originating  from  a  wound. 

Tetanus,  like  erysipelas,  is  probably  always  traumatic  and  never  strictly  idiopathic.  The 
wound  may  be  so  slight  as  to  escape  notice.  When  it  follows  such  injuries  as  simple  frac- 
ture, internal  infection  pr()i)al)ly  occurs,  though  such  causes  air  extremely  rare.  It  is  said 
that  the  weather  influences  the  development  of  tetuuus,  and  that  it  is  uiore  common  in  the 


OPINION    OF    ITMPIRF.  77 

tropics.  TluTO  iirc  also  cortaiti  sections  wiicrc  tetanus  is  much  more  common  tiian  else- 
where and  where  it  ma}'  he  said  to  be  almost  endemic.  *  *  *  Tetanus  usually  appears 
about  the  end  of  the  first  week  after  a  wound  has  been  received,  but  it  may  not  appear  for  a 
longer  period,  even  three  or  four  weeks,  so  that  the  wound  may.  have  been  sometime  healed. 
To  connect  tetanus  with  a  particular  wound,  note  (1)  if  there  were  any  .symptoms  of  it 
before  the  wound  or  injury,  (2)  whether  anj'  other  cause  intervened  after  the  wound  or 
injury  which  would  be  likely  to  produce  it,  and  (3)  whether  the  deceased  ever  rallied  from 
the  effects  of  the  injury. 

In  the  work  of  Allan  McLane  Hamilton  and  others,  entitled  "A  Sys- 
tem of  Legal  Medicine,"  Vol.  II,  page  585,  it  is  said  that — 

Tetanus  occurs  most  frequentl}'  in  wounds  accidentally  inflicted,  particularly  in  punctured 
and  penetrating  wounds,  and  in  those  in  which  a  foreign  body  remains  behind.  Its  exist- 
ence is  now  believed  to  depend  upon  the  presence  of  a  special  organism,  the  Bacillus  tetani. 
A  variable  length  of  time  is  occupied  in  the  period  of  incubation,  according  to  the  number  of 
bacilli  introduced  (Watson  Chej-ne),  the  location  of  the  point  of  infection,  the  anatomical 
characteristics  of  the  surrounding  ti.ssues,  and  the  capacity  of  the  dilferent  tissues  to  j-ield 
the  ptomaines  under  the  influence  of  the  bacillus.  It  is  also  probable  that  the  degree  of 
virulence  governs,  to  a  certain  extent,  both  the  duration  of  the  stage  of  incubation  and  the  sev- 
erity of  the  attack.  *  *  *  and  as  the  bacillus  of  tetanus  requires  the  exclusion  of  oxy- 
gen in  order  to  grow,  it  is  evident  that  a  punctured  wound  quickly  closed  ofl'ers  just  the 
conditions  appropriate  for  the  reproduction  of  the  germ,  if  it  has  been  introduced  into  the 
depths  of  the  wound. 

Trauma  means,  strictly  speaking,  a  wound.  The  term  is  used  ju.stly  as  synonymous  with 
an  injury.     lb.,  298. 

When  it  comes  to  the  actual  trial  of  actions  for  personal  injuries, 
there  are  two  diíTicult  questions,  to  the  solution  of  which  the  testi- 
mony of  the  medical  expert  may  be  directed.  One  of  these  is  how  far 
the  defendant's  negligence  is  responsible  for  some  subsequently  devel- 
oped infirmity  or  disease  or,  in  other  words,  how  far  a  given  injury  may 
be  said  to  be  the  natural  and  proximate  cause  of  a  subsequently  devel- 
oped condition  and  therefore  render  the  defendant  liable  for  that  con- 
dition. 

The  general  rule  is  easily  stated,  to  wit  :  if  the  subsequent  disease  or  infirmity  is  one 
which  would  occur  as  the  natural  result  of  the  injurj',  and  it  is  not  shown  that  any  other 
independent  cause  existed  of  winch  it  migiit  have  been  tlie  result,  then  the  author  of  the 
original  injury  is  liable  for  the  subsequent  disease  or  infirmity.     lb.,  379. 

From  the  foregoing  authorities  it  easily  develops  that  tetanus  usu- 
ally follows  trauma,  that  it  is  a  natural  secpience  of  it,  and  that  neither 
the  severity  of  the  laceration  nor  the  length  of  time  which  had  elapsed 
in  this  case  after  the  wound  was  given,  nor  the  apparent  partial  recov- 
ery have  any  significance  in  determining  whether  the  traumatic  teta- 
nus stated  by  the  ph3'sicians  to  be  the  cause  of  Juan's  death  was  the 
result  of  the  wound  received  on  the  15th  of  May  preceding.  Tetanus 
from  that  wound  was  a  natural  result  within  the  period  which  in  fact 
elapsed  between  May  15  and  the  beginning  of  the  tetanic  attack.  An 
early  healing  of  the  lacerated  wound  was  an  apt  aid  to  tetanus.  When 
the  physicians  in  attendance  ascribed  Juan's  death  to  traumatic  teta- 


78  CASE    OF    HEIRS    OF   JEAN    MANINAT. 

nus,  they  said,  in  eíTect,  that  it  was  tetanus  arising  from  wounds  or 
external  injuries.  As  no  other  wound  or  injury  is  even  sujiirested,  they 
also  said,  in  effect,  that  the  tetanus  related  back  to  the  trauma 
inflicted  by  the  machete  of  the  oiFicer  upon  Juan  w'hen  he  was  under 
the  care  of  the  Government  troops  and  in  the  i)resence  of  the  com- 
manding general.  Since  his  death  resulted  through  a  line  of  natural 
secjuences  from  a  wound  inflicted  under  the  circumstances  named,  the 
responsibility  of  the  respondent  Government  is  the  same  as  though 
death  had  been  the  immediate  result  of  the  machete  stroke. 

"Whether  the  physicians  who  gave  the  certiñcate  were  intelligent  and 
trustworthy  is  of  course  a  proper  impiiry.  There  is  no  (¡uestion  made 
by  the  respondent  Government,  and  there  is  no  indication  in  anytliing 
connected  with  the  facts  of  tills  case  which  suggests  the  contrary-. 

It  becomes,  then,  the  duty  of  the  umpire  to  hold  that  Juan  Maninat 
came  to  his  death  because  of  a  wound  inflicted  upon  him  uniler  such 
circumstances  as  to  impose  responsibility  upon  the  resjiondent  Gov- 
ernment. 

In  this  case,  unlike  that  of  Jules  Brun,  there  are  other  considerations 
than  the  loss  which  Justina  de  Cossé  has  suffered  through  the  death  of 
her  brother  Juan.  There  is  no  evidence  that  she  was  ever  dependent 
upon  him  for  care  or  support,  or  that  he  ever  rendered  either,  or  that 
she  was  so  circumstanced  as  to  need  either,  or  that  he  was  of  ability  or 
disposition  to  accord  either.  Therefore  it  is  diilicult  to  measure  her  exact 
pecuniary  loss.  There  exists  only  the  ordinary  presumptions  attend- 
ing the  facts  of  a  widowed  sister  and  a  brother  of  ordinary  ability  and 
affection.  Some  pecuniary  loss  ma}'  well  be  predicated  on  such  condi- 
tions. For  this  she  may  have  recompense.  But  the  more  important 
feature  of  this  case  is  the  unatoned  indignity  to  a  sister  Kepublic 
through  this  inexcusable  outrage  upon  one  of  her  nationals  who  had 
established  his  domicile  in  the  domain  of  the  respondent  Government. 

There  w^as  abundant  reason,  which  France  may  well  ap})re(iate, 
why  the  respondent  Government  could  not  censure  ov  punish  the  gen- 
eral in  command  or  the  ofhcer  who,  in  fact,  made  the  attack  uj)on 
Juan.  The  country  was  in  the  throes  of  a  strong  revolution,  the  sup- 
porting hand  of  every  one  loyal  to  the  titular  government  was  essential 
to  its  support.  It  could  not  meet  successfully  the  possible  results  if  it 
had  undertaken  to  censure  or  punish  the  guilty  parties.  Silence  and 
tacit  acquiescence  was  the  only  position  then  open  to  the  titular  govern- 
ment. Since  that  period  and  prior  to  the  sitting  at  Caracas  of  this 
mixed  connnission  there  had  been  no  real  opportunity  for  the  two 
governments  (li])lomatically  to  consider  or  pass  upon  the  merits  of  this 
case,  and  it  remained  practically  for  this  tribinuil  to  speak  the  voice  of 
regret  and  to  tender  atonement  for  a  sad  result.  Justina  de  (\)ssé  can 
be  the  medium  f)f  transmission  of  this  atonement  from  the  respondent 
Government  to  France  and  by  a  payment  of  money  honorably  answer 


OPINION    OF    UMPIRE.  79 

the  just  demands  of  the  claimants  and  assure  to  the  intervenino;  Gov- 
ernment the  constant  wilUngness  of  Venezuela  to  atone  for  this  wrong 
by  the  only  means  now  in  her  power. 

The  honorable  commissioner  for  France  disclaims  all  right  to  an 
award  based  upon  the  injuries  directly  attributable  to  the  failure  of 
Maninat  Brothers  as  a  claim  consequent  upon  the  death  of  Juan  for 
reasons  which  he  succinctly  states;  but  beholds  that  some  disastrous 
resvdts  following  his  death  and  the  pillages  and  requisitions  preceding 
his  injury  may  properly  move  the  generous  impulses  of  the  lunpire 
when  he  comes  to  make  uj)  his  award. 

It  is  probable  that  the  honorable  commissioner  for  France  and  the 
umpire  do  not,  in  fact,  really  differ  in  their  conception  of  what  is  equity 
in  such  a  matter.  But  to  plant  an  equity  always  requires  the  basic 
quality  of  a  right  in  the  party  receiving,  because  of  a  WTong  moving 
from  the  party  to  be  charged  with  the  onerous  conditions  of  the 
equitable  conclusion.  Generosity  is  not  equity;  equity  has  no  part  in 
generosity.  Equity  exists  when  exactly  the  right  thing  is  done 
between  the  parties.  Neither  more  nor  less  than  this  is  equity.  A 
just  conclusion  only  opens  the  door  to  equity.  So  far  as  the  respond- 
ent Government  is  responsible  for  the  wrongs  suffered  by  the  next  of 
kin  of  Juan  who  have  a  right  to  the  intervention  of  France  because  of 
their  nationality,  so  far  and  so  far  only  does  equity  require  or  permit 
action  on  the  part  of  the  umpire.  In  every  respect  other  than  this,  he 
has  no  right  either  to  add  to  nor  subtract  from.  To  act  at  all,  he  must 
find  a  right  to  claim  on  the  part  of  the  claimant,  and  a  wrong  to  be 
redressed  on  the  part  of  the  respondent  Government.  Within  those 
circumscribed  limits  he  has  liberty  of  and  necessity  for  action;  outside 
of  those  limits  he  is  a  trespasser.  He  can  not  be  generous;  he  can  only 
deal  justl}"  and  equitably. 

So  far  as  the  injuries  to  the  Society  of  Maninat  Brotliers  is  concerned, 
the  interest  of  Juan  in  the  requisitions  and  pillages  mentioned,  which 
occurred  prior  to  his  death,  it  is  sufficient  to  say  that  the  claimants 
have  had  the  preparation  of  this  cause  for  presentation  before  this 
tribunal.  No  reason  is  given  why  this  reclamation  did  not  include  a 
definite  and  precise  statement  under  that  head,  if  reimbursement  was 
sought.  It  was  surely  capable  of  some  degree  of  exactness  in  the 
statement  and  some  degree  of  certainty  in  the  proof.  Neither  has 
been  attempted.  By  their  own  inattention  and  inaction  they  have 
deprived  the  umpire  of  all  opportunity  to  know  anything  of  this 
branch  of  their  alleged  injuries,  and  tliev  must  not  ask  him  to  con- 
jecture and  estimate  when  they  might  have  permitted  him  a  settled 
judgment,  nor  can  they  at  all  expect  that  he  will  add  aught  to  his 
award  because  of  these  probable,  but  vaguely  uncertain,  losses  which 
they  project  into  this  reclamation. 


80  CASE    OF    HKIRS    OF    JEAN    MANINAT. 

Because  of  tlio  holding  by  tlic  umpire  that  Pedro  Maninat  is  a 
Venezuelan,  it  results  necessarily  that  nothing  can  be  considered  in  his 
behalf  on  account  of  failure  of  justice  or  denials  of  justice,  if  such 
occurred,  succeeding  the  death  of  Juan  and  personal  to  him  or  to  the 
mother  of  his  wife,  who  attempted  to  assist  him. 

In  naming  one  only  of  the  Maninat  heirs  as  competent  to  present  a 
claim  under  the  protocol  of  February  19,  1902,  no  inequity  is  done  the 
other  heirs.  It  does  them  no  harm  that  she  is  not  a  Venezuelan,  but 
of  French  nationality  only.  The  laws  of  France  governing  the  dis- 
tribution of  estates  are  not  involved  in  tliis  decision,  neither  arc  they 
invaded  nor  disturbed.  This  tribunal  has  no  part  in  the  final  allotment 
or  distribution  of  the  sum  which  by  the  award  herein  is  made  payable 
to  France,  through  the  personality  of  Justina  de  Cossé,  for  whom  that 
country  has  right  of  intervention.  Over  the  proceeds  of  the  award 
here  made  France  has  absolute  dominion,  so  far  as  this  tribimal  is 
concerned,  and  in  the  perfect  justice  and  equity  of  her  procedure  there 
can  be  complete  content. 

It  is  the  judgment  of  the  umj^ire  that  a  just  compensation  which 
covers  both  aspects  of  this  case  is  100,000  francs,  and  the  award  will  be 
prepared  for  that  amount. 

NORTHFIELD,  JullJ  31,  1905. 


CLAIM  OF  ANTOINE  FABIANI.— NO.  4.« 


HEAD  NOTES. 


This  claim  came  to  the  umpire  after  having  been  once  heard  and  determined  by  the  lionor- 
al)le  President  of  the  Swiss  Federation,  being  sul)iiiilted  to  him  under  the  protocol  of 
February  19,  1891,  the  first  paragraph  of  whicli  reads; 

"The  Government  of  the  United  States  of  ^^'nezuehl  and  the  (loveiiiinent  of  Ihc 
French  Republic  have  agreed  to  submit  to  an  arl)itrator  (he  claiius  of  M.  Antonio 
Fabiani  against  the  Venezuelan  Government." 

Against  the  proposition  that  such  an  arbitrament  and  award  is  conclusive  upon  all  i)arties 
the  claimant  urges  that  tlie  Swiss  arbitrator  held  t  hat  he  had  not  jurisdiction  o\  er  a  large 
part  of  the  claims  and  therefore  was  incompetent  to  consider  and  to  pass  upon  them; 
that  the  Swiss  arl)itrator  in  fact  extracted  and  sulitracted  from  those  claims  such  as  lie 
held  were  without  his  jiirisdictioiï  and  only  awarded  concerning  the  rest. 

Tiie  umpire  holds,  however,  that  no  jiu'isdictional  (¡uestions  were  before  the  Swiss  arbi- 
trator, none  were  urged  by  either  party,  and  none  in  fact  were  determined;  that  all 
claims  of  Fabiani  were  in  fact  submitted  by  the  protocol  to  the  decision  of  the  Swiss 
arbitrator  and  all  were  in  fact  decided  by  him. 

That  there  were  certain  restrictions  placed  upon  the  Swiss  arliiliator  in  tliepi'otocol  which 
had  the  eil'ect  to  limit  the  scope  of  the  claims  left  inidi.sposed  of  b}'  the  two  Governments 
for  decision  by  the  Swiss  arbitrator. 

That  under  the  protocol  the  Swiss  arbitrator  must  first  determine  whether  the  \'eiiezuelan 
Government  was  responsible  for  any  damages  to  Fal)iani;  tliat  this  responsiliility  must 
be  determined  in  view  of  the  limitations  of  the  protocol  wliich  were  to  the  Swiss  arbi- 
trator his  suprem.e  law.     These  limitati(jns  were  cssentialh"  that  the  decision  was  to  be 

a  EXTRACT   FROM   THE   MINUTES   OF   THE    SESSION   OF   MAY    30^  1903. 

The  claim  of  Antoine  Fabiani  was  then  taken  up. 

Doctor  Paúl  rejects  it  as  having  ah-eady  been  judged  by  the  arbitral  court  of  Berne,  the 
award  of  which,  in  his  opinion,  lias  decided  definitely  on  all  the  points  of  indenuiity  presented 
by  M.  Fabiani. 

M.  de  Peretti,  on  the  other  hand,  claims  that  the  .Swiss  arbitrator  has  brushed  aside  all  the 
points  represented  to-day  by  M.  Fabiani  as  not  being  covered  by  the  agreement  of  arbitra- 
tion signed  the  24th  of  February,  1891,  by  the  two  Governments.  The  President  of  the 
Swiss  Confederation  has,  then,  declared  himself  incompetent  to  examine  the  aforesaid 
points,  which  by  this  very  fact  have  found  themselves  reserved  for  tlie  examination  of  the 
commission  instituted  by  the  protocol  of  Pans.  Consequently  M.  de  Peretti  admits  the 
demand  of  M.  Fabiani,  which  lie  recognizes  to  be  well  founded,  and  accoriis  to  ium  tlie  .sum 
which  he  claims. 

Doctor  Paúl  declares  that  the  decision  taken  by  M.  de  Peretti,  according  to  .M.  Fabiani  the 
sum  which  he  claims,  has  not  been  preceded  by  any  discussion  between  the  arbitrators  upon 
the  amount  of  the  claim,  which  Doctor  Paúl  rejects  for  the  reason  already  expressed — 
namely,  that  all  the  claims  newly  presented  by  M.  Fabiani  have  become  res  judicata. 

This  claim  will  then  be  submitted  to  the  examination  of  the  umpire. 

S.  Doc.  533,  59-1 6  81 


82  FABIANI    CARE. 

reached  in  accordance  with  "  the  laws  of  Venezuela,  the  general  principles  of  the  law  of 
nations,  and  the  convention  in  force  l)etween  tlie  two  contracting  powers." 

The  convention  then  in  force  between  the  two  nations  was  that  of  November  26,  1885,  and 
had  especial  reference  to  article  5  thereof.  The  force  and  effect  of  article  5  of  said 
treaty  was  considered  and  determined  by  the  Swiss  arbitrator,  and  his  interpretation 
thereof  is  conclusive,  .so  far  as  the  claim  of  Fabiani  is  concerned. 

In  order  to  determine  the  scope,  depth,  and  breadth  of  that  treaty,  the  Swiss  arbitrator  had 
to  define  the  meanini^  of  tlic  expression  "denials  of  justice"  found  in  .said  treaty.  His 
definition  is  conclusive  upon  the  claim  of  Fabiani. 

When  the  Swiss  arbitrator  decided  the  principles  {^overninsr  tlie  claim  submitted  to  liim,  he 
had  decided  afhrmalively  or  neojativcly  the  diflerent  claims  made  in  Fal)iani's  i)ehalf, 
not  in  detail  iiut  in  principio. 

When  France  intervened  in  belialf  of  her  national,  his  claim  was  no  longer  individual  and 
private,  but  national. 

Thenceforward  it  was  national  interests,  not  private  interests,  that  were  to  he  safeguarded. 
It  was  the  national  welfare  and  national  honor  which  were  to  be  considered.  Should 
the  general  good  of  France  at  any  time  during  the  negotiations  with  Venezuela  require 
a  surrender  of  all  of  Fabiani's  claims,  France  may  make  such  surrender,  or  it  may  sur- 
render a  part  thereof,  and  for  such  surrender  Fabiani,  if  he  has  a  claim  anywhere,  has  it 
against  his  own  Government. 

When  a  nation  intervenes  in  belialf  of  her  national  and  iiiially  consents  to  arbitration  of  the 
difTerence,  the  primary  purpose  of  such  arbitration  is  to  remove  the  vexed  question 
from  the  arena  of  diplomatic  dissension  and  controversy.  It  is  not  to  be  considered 
that  France  would  consent  to  submit  to  arbitration  a  part  only  of  her  national's  claim, 
leaving  large  and  important  parts  of  it  undisposed  of,  and  to  remain  as  vexatious  ques- 
tions between  the  two  Governments. 

Neither  is  it  to  be  considered  that  Venezuela  intelligently  entered  upon  an  arbitration  of  a 
question  in  dispute  between  the  two  Governments  understanding  that  the  eiVect  of  the 
agreement  to  arbitrate  would  l)e  to  hold  her  to  make  reparation  for  such  an  amount  as 
might  be  held  to  be  denials  of  justice  by  the  arbitrator,  while  for  all  not  so  held  she  would 
later  be  compelled  to  again  oppose  them  or  to  pay  them  or  to  arbitrate  them. 

Venezuela  did  not  enter  upon  this  arbitration  by  the  Swiss  arbitrator  with  the  understanding 
that  if  ho  decided  everything  against  Fabiani  all  that  had  originally  been  claimed  would 
be  left  unsettled  by  his  decision,  and  be  restored  to  their  primal  state  of  existing  claims 
for  which  the  Government  of  France  could  intervene.  Equally  certain  is  it  that  she 
did  not  enter  into  the  arbitration  with  the  understanding  thai  if  any  part  oi  tlie  claim 
were  decided  in  her  favor  that  part  might  yet  he  l)rought  liefore  another  arbitral 
tribunal. 

In  that  and  in  every  similar  international  controversy  tlie  two  Governments  seeking  an 
agreement  look  well  for  a  common  meeting  point  which  is  usually  to  be  gained  only  by 
mutual  concession  and  mutual  remission  of  matters  which  can  yield  and  when  that 
common  meeting  point  is  reached  to  submit  it  to  the  arbitrator  as  the  whole  contro- 
versy; or  as  being  all  that  which  botii  parties  will  admit  is  the  controverted  question. 
Which  mutual  point  ol  agreement  is  as  much  a  matter  of  agreement  between  the  high 
contracting  parties  as  is  the  covenant  to  ari)itrate  itself  and  is  an  integral  i>arl  of  that 
covenant. 

Each  concession  so  made  by  one  party  cancels  the  one  made  by  the  other,  ><o  that  outside 
the  terms  of  the  convention  there  is  nothing  lelt  of  the  original  contention.  .Ml  which 
is  excluded  is  concluded  by  the  high  contracting  parlies  themselves.  What  is  not 
found  of  the  original  controversy  to  be  resting  in  the  compromise  is  in  oblivion. 

Just  how  much  is  conceded  and  how  much  is  retained  is  left  for  the  determination  of  the 
arbitrator.  It  may  be  contended  on  tlie  one  hand  there  is  nothing  concc-iled,  on  liio 
other  hand  that  nothing  is  left;  but  the  arbitrator  is  to  decide  how  much  is  included 


OPINION    OF    VENEZUELAN    COMMISSIONER.  83 

and  liow  much  is  excluded,  and,  when  he  decides,  that  decision  \>ijinal  and  conclusive 
upon  the  tvhole  of  the  original  controrersij. 

That  whicli  Fabiani  chiiins  to  have  been  a  subtraction  by  the  Swiss  arbitrator  is  in  fact 
merely  designating  tlie  diilerent  elements  of  his  controversy  wliicli  in  elVect  íIk^  liigh 
contracting  parties  had  agreed  to  ehniinale  and  subtract  in  order  to  reach  an  agreement 
of  arbitration. 

So  far  as  these  concessions  apjjroaching  and  ¡jermitting  an  agreement  to  arbitrate  linally 
aiïected  the  pecuniary  interests  of  Fabiani  they  were  in  elFect  tlie  especial  tribute 
re(|uired  of  him  by  his  Governnffnt  to  conserve  its  general  good. 

The  honorable  arbitrator  of  Berne  on  his  own  initiative  eliminated  nothing,  subtracted 
nothing,  and  there  was  left  for  him  nothing  except  to  settle  the  meaning  of  the  protocol 
and  then  to  observe  its  effect  and  to  point  out  which  of  the  claims  came  within  and  which 
without  the  action  of  the  rule  agreed  upon  and  prescribed  to  him  by  the  two  honorable 
Governments,  settle  the  danniges  on  what  remained,  and  make  award  accordingh'. 

It  follows  that  the  protocol  arranged  between  the  honorable  Governments  of  France  and 
Venezuela  February  21,  1891,  succeeded  by  the  award  of  the  lionorable  President  of 
tlie  Swiss  Federation  December  15,  1S9G,  were,  acting  together,  a  complete,  final,  and 
conclusive  disposition  of  the  entire  controversy  on  behalf  of  Fabiani. 


OPINION   OF  THE  VENZUELAN  COMMISSIONER. 

Antonio  Fabiani  has  presented  bel'ore  this  commission  a  demand  of 
indemnity  amounting  tc  9,509,728.30  bolivars,  for  losses  and  damages 
comprised  in  the  items  which,  he  says,  were  eliminated  by  the  Swiss 
arbitrator  in  his  award  rendered  in  the  French-Venezuelan  suit  called 
the  "Fabiani  controversy,"  on  the  30th  of  December,  1S96,  and  by 
which  award  the  Government  of  the  United  States  of  Venezuela  was 
condemned  to  pay  to  Fabiani,  by  way  of  indemnity,  in  the  terms  of 
the  protocol  of  the  24th  or  February,  1891,  including  all  expenses, 
the  total  sum  of  4,346,656.57  bolivars,  with  interest  at  the  rate  of  5  per 
cent  a  year  from  the  date  of  the  award. 

Fabiani  argues  that  the  Swiss  arbitrator  deliberately  subtracted 
from  his  decision,  because  they  were  not  comprised  in  the  terms  of  the 
protocol,  certain  sums  demanded  by  him  in  his  claim  presented  to 
said  arbitrator  and  partly  contained  in  seven  separate  tables,  imder 
the  letters  A,  B,  C,  D,  E,  F,  and  G,  svhich  he  presented  to  the  arbi- 
trator when  the  demand  was  formulated.  These  tables,  as  said  by 
Fabiani  himself,  in  his  statement,  pago  629,  had  for  their  object  to 
facilitate  the  investigations  of  the  arbitrator  and  corresponded  to  the 
situation  that  had  been  created  to  him  in  Venezuela  by  the  series  of 
prejudicial  acts  on  which  he  based  his  claim,  and  he  adds,  on  that 
account,  the  following  consideration: 

Although  the  whole  links  together  without  solution  of  continuity,  we  ha\e  thought  that 
it  was  convenient  to  keep  a  certain  chronological  order  and  take  into  consideration  the  time 
when  the  damages  were  caused  and  when  they  exercised  theii-  inlluence  on  our  fate  and  on 
the  destinies  of  our  commercial  establi.shments. 

The  demand  entered  by  the  Government  of  the  French  Republic, 
plaintiff,  against  the  Government  of  Venezuela,  defendant,  before  the 


84  FABIANI    CASE. 

President  of  the  Swiss  Confederation,  appointed  arbitrator  hy  a 
protocol  signed  in  Caracas  on  the  24th  of  February,  ISOl.  re.^erred  to 
the  decision  of  said  arbitrator  the  question  as  to  whether — 

according  to  the  laws  of  Venezuela  the  general  principles  of  the  law  of  nations  and  the  con- 
vention (of  the  2Gth  November,  1885)  in  force  between  the  two  contracting  powers  the 
Venezuelan  Government  was  responsible  for  the  damaties  vÁuh  Fabiani  claimetl  he  sustained 
through  denials  of  justice, 

and  the  arbitrator  was  also  chari^ed  with  the  dut\"  of  determining — 

in  case  this  respünsil)ility  was  recognized,  as  to  all  or  jxtrf  of  the  claims  in  question,  the  amount 
of  the  pecuniary  indemnity  that  the  \'enezue]an  Goveinment  ougiit  to  pay  into  tlie  hands  of 
M.  Fabiani,  which  payment  would  be  made  in  funds  of  tlic  Venezuelan  3  percent  diplomatic 
debt.     (Arbitration  protocol  of  1891.) 

The  demand  was  entered  to  obtain  the  reparation  of  damages 
caused  by  denials  of  justice  through  acts  imputed  to  the  administra- 
tive and  judicial  authorities  of  the  Ivejniblic  of  Venezuela,  for  which 
damages  the  state  ought  to  be  responsible  and  which  comprised  : 

First.  The  reparation  ol  the  damage  sustained  ; 

Second.  The  gain  frustrated; 

Third.  The  interest  calculated  from  the  date  of  the  damageable  acts; 

Fourth.  The  compound  interest; 

Fifth.  The  sacrifices  made  by  the  injured  party  for  the  maintenance 
of  his  industry; 

Sixth.  The  prejudice  deriving  from  the  expense  made  and  from  the 
time  lost  to  arrive  at  the  execution  oí'  the  sentences; 

Seventh.  The  damag(^s  to  be  considered  as  the  necessary  conse- 
quence of  the  offenses  ; 

Eighth.  The  damage  done  by  the  privation  of  work  in  tlic  luture; 
and 

Ninth.  The  reparation  of  the  moral  prejudice. 

The  demonstrative  UúAo  of  the  claims  of  Fabiani  was  annexed  to 
the  demand  with  determination  oí  the  several  items  for  capital  and 
capitalized  interest,  amounting  to  the  total  siun  of  4().i)44,r)()o.l7 
francs. 

The  wSwiss  arbitrator,  in  determining  tlie  object  of  tlic  dcMnand 
referred  to  his  decision,  fixed  the  reach  that  he  considered  lun-essary 
to  attribute  to  the  words  "denial  of  justice,"  construing  that  the 
powers  which  signed  the  compromise  had  given  to  said  wt)rds  their 
widest  meaning  and  lind  meant  by  them — 

all  the  acts  (f  judicial  authorities  which  might  imply  a  direct  or  disguised  refusal  l<>  do  justice. 

Said  arbitrator  determimitely  says  in  the  award  in  (juestion  :  The  duty 
of  the  arbitrator  |)recisely  consists  in  deciding  whether  Venezuela — 

is  responsible  for  the  damages  which  Fabiani  .says  to  have  sustained  through  di'nials  of  jus- 
tice. *  *  *  Thus  the  object  of  the  confrorersg  and  its  origin  are  ucknow leilgid  l)v  the 
parties;  it  was  on  account  of  the  lefusal  of  the  execution  of  tli(<  award  of  tlie  l.'itli  Decem- 
ber, 1880,  which  Fabiani  possessed  against  two  del>tors  doiuiciltMl  in  W'lie/.ucla  or  on  account 


OPIKIOIS"    OF    VENEZUELA!^    COMMISSIONER.  85 

of  the  default  of  execution  owing  to  th(>  admission  of  illegal  recourses  that  France  took  the 
interests  of  her  native  into  her  hands. 

The  Swiss  arbitrator  also  declares  that — 

Venezuela  does  not  incur  any  resjwnsihility  according  to  the  prolocol,  on  account  of  facts 
foreign  to  the  judicial  authorities  of  the  respondent  (Jovemincnt. 

Fabiani  now  maintains,  more  than  six  years  after  the  sentence  of 
Berne  became  affirmed,  that  the  Swiss  arbitrator  deliberately  elimi- 
nated iY^o  faits  du  yrincCj  because  he  considered  them  excluded  I'rom 
the  terms  of  the  protocol.  It  does  not  appear  from  the  careful 
examination  of  that  sentence  that  the  arbitrator  had  eliminated  any 
fact  directly  or  indirectly  connected  with  the  fundamental  cause  of  the 
suit  aufl  with  its  object,  namely,  the  denials  of  justice  arid  the  claims 
that  Fahiani  had  lyresented,  pretending?  that  the  Government  of  the 
Re])ublic  was  responsible  for  all  of  them.  The  arbitrator  eliminated 
some  of  those  claims,  because  the  facts  on  which  they  were  based 
did  not  make  Venezuela  incur  an}^  responsibility,  as  they  were  stranjje 
to  the  judicial  authorities  of  the  resj)ondent  state.  The  arbitrator 
expressly  declares  that  some — 

of  those  claims  ha-sed  on  faits  tin  prince,  which  are  either  changes  of  legislation  or  arljitrar}'' 
acts  of  the  executive  power,  are  absolutel}'  sul)trac(ed  from  his  decision,  wherefore  he  elimi- 
nates fi'oni  the  procedure  all  the  allegations  and  means  of  proof  iclaling  thereto,  as  long  as 
he  can  not  leserve  them  to  establish  other  concluding  and  connect(>d  facts  relating  to  the 
denials  of  justice. 

And  the  wSwiss  ar})itrator  adds  thereupon,  in  the  motives  of  the  sen- 
tence, the  following  declaration: 

It  is  certainly  the  denials  of  justice  committed  in  the  course  of  the  proceeding  for  the  exe- 
cution of  the  award  of  the  IStli  of  December,  1.S80,  a?ul  the  eventual  appreciation  of  their 
pecuniary  consequences  that  form  the  object  of  the  present  litigation.  It  is,  however,  neces- 
sary to  remove  another  objection  of  the  petition. 

The  judicial  position  of  Fabiani  in  Venezuela  was  first  liquidated  by  the  compromise  of 
the  31st  of  January,  1873.  After  a  series  of  incidents  Fabiani  renounced  the  benefit  of  this 
act  and  signed  the  compromise  that  gave  birth  to  the  award  of  1880.  The  plaintiff  has 
stated  tliat  he  adhered  to  this  compromise  under  the  empire  of  main  force  and  that  it 
did  not  cover  the  pifiar  denials  of  justice.  But  he  (the  plaintif!)  recognizes  without  hesita- 
tion (petition,  p.  142,  et  secj)  that  Fabiani,  who  could  have  had  the  compromise  aimulled 
by  the  French  courts,  preferred  to  reserve  the  future  of  his  commerce  in  \'enezuela  by 
exhausting  all  means  of  conciliation.  Fabiani  thus  contented  himself  with  the  state  of 
things  created  b}^  the  acceptance  of  the  arbitrators'  jurisdiction,  and, besides, from  that  moment 
his  judicial  efforts  in  Venezuela  only  tended  to  the  execution  of  the  judgment  of  the  15th  of 
December,  1880.  The  motive  drawn  from  the  vis  major,  which  would  have  affected  the 
compromise  of  1880  and  would  remove  farther  back  the  starting  point  of  the  denials  of  jus- 
tice compri.sed  in  the  present  instance  can  not  be  taken,  therefore,  into  consideration. 
Denials  of  justice  in  virtue  of  which  it  would  be  possible  to  procetnl  against  Venezuela  for 
responsibility  before  the  arliitrator  could  not  have  taken  place  before  the  introduction  of 
the  proceeding  for  the  execution  of  tlie  award  of  the  15th  of  Decemi)er,  1880,  or  before  the 
7th  of  June,  1881,  the  date  of  the  petition  for  the  exequátur  entered  before  the  high  federal 
court. 

The  arbitrator  has  not,  therefore,  admitted  besides  the/«í7.s'  du  prince  any  of  the  facts 
foreign  to  the  nonexecution  and  to  the  effects  of  the  nonexccution  of  the  sentence  above 
referred  to  to  be  proved. 


86  FA  RIANT    CASE. 

It  is  seen  from  the  foregoinfi  insertion  tliat  the  ar])itrator,  exercising 
his  wide  powers  of  appreciation,  left  out  of  consideration  any  fact, 
whether  a  denial  of  justice,  prior  to  the  7th  of  June,  1881,  when  the 
demand  of  execution  of  the  sentence  of  Marseilles  was  entered  be^jre 
the  high  federal  court,  or  those  called /aiis  au  prince,  that  he  could  not 
reserve  \\ath  a  view  to  prove  other  concluding  and  connected  facts 
relating  to  denials  of  justice.  That  elimination  of  proofs  and  allega- 
tions concerning  facts  entirely  strange  to  the  mission  oí"  the  arbitrator, 
which  precisely  consisted  in  deciding — 

wliether  Venezuela  was  responsilde  for  the  damages  wliich  Fabiaiii  clainied  lie  sustained 
through  denials  of  justice, 

does  not  constitute,  on  any  reason  of  law  or  of  procedure,  a  declara- 
tion of  incompetence  or  of  want  of  jurisdiction  on  the  ])art  of  the  arbi- 
trator, with  regard  to  some  particulars  of  the  demand,  but  only  estab- 
lishes that  some  of  those  particulars  or  the  facts  upon  which  they 
rested,  were  destitute  of  the  conditions  necessary  for  their  being 
accepted  as  the  consequence  of  denials  of  justice,  and,  therefore,  for 
their  being  admitted  by  the  arbitrator  as  elements  of  appreciation 
tending  to  cause  Venezuela  to  be  declared  responsible  for  the  damages 
that  Fabiani  claimed  as  the  consequence  theroof  and  as  the  o])ject  of 
the  demand. 

The  Swiss  arbitrator  did  not  fail  to  appreciate  some  of  thoso  faits  du 
prince  which,  while  not  establishing  an  intimate  connection  with  the 
acts  of  denial  of  justice,  contributed  in  the  mind  of  the  arbitrators  to 
form  appreciations  as  to  the  extent  of  the  guilt  and  the  amoimt  of 
the  damages  recognized  in  favor  of  Fa})iani.  Such  is  collected  from 
the  motives  of  the  sentence  of  the  arbitrator,  contained  in  page  30  : 

Different  indications  make  one  believe  that  the  respondent  Govoriunont  openly  hosfilized 
Fabiani  and  that  this  position  might  incite  or  encourage  the  judicial  autiiority,  at  least  in 
the  provinces  distant  from  the  capital  and  without  the  control  of  a  watchful  public  opinion, 
to  ignore  the  rights  of  a  foreign  plaintiff,  to  whom  influential  persons  of  tiie  state  would  not 
conceal  their  hostility.  Such  is  the  officiai  approval  of  (he  21st  August,  1883,  given  to  the 
cession,  consented  by  B.  Roncayolo,  of  the  contract  of  the  La  Ceiija  Kailway,  although  it 
was  notorious  in  Venezuela  that  that  cession  had  for  its  object  to  Jir}iinish  or  annihilate  the 
pledges  of  a  creditor  (faits  du  prince).  Such  appears  also  to  be  the  niodiliratioii  ailopteil  by 
the  legislation  of  the  state  of  Falcon  in  articles  ñ  and  7  of  tlie  organic  law  of  the  judicial  ])i)wer 
in  January,  ISKÎ  (faits  du  piince);  such  was  also  the  witlulrawal  of  (he  towing  stM'vice  which 
under  the  circumstances  and  at  the  time  it  was  decided  liad  (o  be  intcrprclecl  as  an  act  of 
reprisal  directed  against  Fabiani  (faits  da  prince). 

It  is  not  possible?  to  fail  to  recognize,  according  to  a  sound  logic,  that 
the  Swiss  arbitrator  gave  ihosv  faits  du  prince  all  the  importance  that 
he  was  permitted  to  give  them  within  the  terms  of  the  arbitration 
compromise;  that  he  consciously  appreciated  them,  inferring  from 
them  serious  consetiuences  to  the  extent  of  considering  them  as  a 
manifestation  of  the  fact  that  the  govemwent  openhj  antagonhed 
Fabiani;  eiicouraging  and  inciting  th<  judicial  aiithoritij  to  ixmI'oi  in  the 


OPINION    OF    VENEZUELAN    COMMISSIONER.  87 

acts  considered  by  the  arbitrator  as  denials  of  justice,  and  finally  that 
they  (the  faits  du  prince)  under  the  circumstances  they  occurred  had 
to  be  considered  as  acts  of  reprisal  directed  apiinst  Fabiani. 

In  virtue  of  that  appreciation  the  Swiss  arbitrator  established  that 
the  responsibility  of  Venezuela  for  the  acts  properly  called  of  denial 
of  justice  was  tantamount  to,  at  least,  the  one  derivin<i:  from  "oiTcnses 
and  quasi  delicts"  and  that  it  oblit^ed  Venezuela  to  com])ensate  all  the 
damage  that  might  reasonably  be  considered  as  a  direct  or  indirect 
consequence  (damnum  emergens  et  lucrum  cessans)  ;  and  it  was  in  virtue 
of  that  appreciation  that  the  arbitrator,  when  declaring  the  respondent 
Government  responsible  for  all  the  consequences  of  the  denials  of 
justice  imputable  to  the  judicial  authorities  of  Venezuela,  determined 
the  extent  of  those  consequences  in  the  widest  manner,  liijuidating  the 
return  of  damages  and  prejudices  presented  by  the  claiming  govern- 
ment in  the  manner  determined  by  chapter  6  of  the  award,  page  42, 
estimating  the  direct  damage  and  the  moral  prejudice,  the  indirect 
damage,  the  compound  interest,  the  gain  frustrated,  the  execution 
expenses,  and  the  costs  of  the  instance. 

To  prove,  furthermore,  with  the  very  arguments  of  Fabiani  that  the 
actual  purpose  of  the  arbitration  process  at  Berne,  determined  by  the 
general  terms  of  the  compromise  of  the  24th  of  February,  entered  into 
between  France  and  Venezuela,  was  to  have  the  question  decided  as 
to  whether  there  had  been  any  denial  of  justice,  for  which  decision  the 
arbitrator  had  to  appreciate  all  the  facts  and  all  the  incidents  connected 
with  the  suit,  and,  if  there  had  been  any,  to  fix  the  amount  of  the 
pecuniary  indemnity  corresponding  to  all  or  some  of  the  claims  pre- 
sented b}^  Fabiani,  it  sullices  to  reproduce  the  very  statement  pre- 
sented by  the  claimant  to  the  Swiss  arbitrator,  most  properly  determin- 
ing the  object  of  the  suit.  In  page  4  of  the  réplique  to  the  answer  of 
the  Government  of  Venezuela,  Fabiani  copies  tlie  statement  of  motives 
presented  by  the  French  Government  (oncerning  the  demand  of 
indemnity.  Said  insertion,  taken  from  the  note  addressed  by  the 
legation  of  France  in  Caracas  to  the  GoA^ernment  of  Venezuela,  runs 
as  follows  : 

In  the  opinion  of  the  French  Government,  the  reparation  ought  to  comprise,  at  least, 
in  the  first  place,  tiie  amount  of  the  sums,  in  capital  and  interest,  the  collection  of  which 
would  have  been  assured  by  the  execution  in  due  time  of  the  sentences  and,  besides,  the 
restitutions  ordered  l)v  the  judges  and  which  would  represent  about  one  million  five  hundred 
thousand  francs  (1,.'',(X),()0()  francs),  and,  in  the  second  place,  damages  and  prejudice;,  the 
figure  of  which  would  have  to  he  discusscJ ,  for  the  damage  causal  to  Fabiani  in  his  credit  and 
in  his  commerce. 

These  three  points  are  those  comprised  in  Tables  A,  B,  (',  1),  and  E 
of  the  petition  (pages  644,  747,  797,  and  S17  of  the  statement). 
The  Frene  h  note  adds  (page  3  of  tlie  defense)  : 

As  to  the  rest  of  his  pretensions,  a  .serious  contradictory  examination  ought  to  determine 

in  what  measure  tlicv  arc  •rroundctl. 


88  FABIANI-  CASE. 

AMiat  are  these  pretensions?  Fabiani  proceeds.  The  affairs  of  the 
tugboats  and  of  the  La  Ceiba  Railway  : 

Wliat  was  the  reason  of  so  much  reserved  a  formula?  ^Tliy  those  reticences?  The  expla- 
nation tliereof  will  be  found  in  tlie  last  paragraph  of  page  .527  of  our  report.  *  *  * 
That  as  to  (he  object  of  (he  litigation — that  is  to  say,  the  claints  of  M .  A.  Fabiani  (hat  the 
Government  of  the  United  States  of  Venezuela  and  (he  Government  of  France  have  atjreed  to 
refer  to  an  arbitrator.     (Treaty  of  Caracas  of  tlie  24tli  of  F'ebruarv,  1.S91.) 

In  page  6  of  the  RépHque  Fabiani  says  : 

We  shall  only  point  out,  1st,  that  the  note  on  the  opening  of  the  negotiations  designates 
all  the  commercial  prejudices  that  are  now  the  object  of  Tables  A,  B,  D,  and  E  of  the  Kej)ort  ; 
2d,  that  the  same  note  makes  known  that  the  rest  of  the  pretensions  of  Fabiani  must  be  sub- 
mitted to  a  serious  and  contradictory  examination;  3d,  that  the  amounts  arc  undetermined 
for  all  our  claims  except  for  account  A,  the  amount  of  which  indicated  under  the  reservation 
of  the  word  "appro.ximatel}'"  has  not  undergone  other  modifications  than  the  ¡ncrea.se  of 
interest,  the  reparation  of  an  omission  (No.  7  of  Table  A),  and  the  incoiporation  of  dotal 
annuities. 

In  page  1 1  of  the  same  RépHque  : 

It  is  important  to  obser\c  that  the  word  claims,  twice  enunciated  in  the  protocol, 
applies  to  the  pecuniary  claims  and  only  to  them. 

In  page  1 3  : 

They  shall  have  to  decide,  1st,  whether,  according  to  the  laws  of  Venezuela,  the  general 
principles  of  the  law  of  nations  and  the  convention  in  force  between  the  two  contracting 
powei-s,  the  Venezuelan  Government  is  responsible  for  (he  damages  which  Fahiani'says  to  have 
sustained  through  denial  of  justice;  2d,  to  fix,  in  ca.se  this  responsibility  should  lie  recognized 
for  all  or  part  of  the  claims  in  question,  the  amount  of  the  pecuniary  indemnity  which  the 
Government  of  ^^enezuela  ought  to  pay  into  the  hands  of  M.  Fabiani,  which  payment  will 
be  made  in  bonds  of  the  Venezuelan  3  per  cent  diplomatic  debt. 

Such  are  the  tenus  of  the  protocol.  They  are  so  clear  and  precise  that  they  require  no 
interpretation.  They  give  the  arbitrator  the  right  to  search  out  the  denial  of  justice,  to  }>oint 
out  to  it  where  he  may  find  i(  and  disallow  our  demand,  if  the  denial  of  justice  does  not  exist. 
There  is  no  more  tedious  a  (ask  than  to  have  at  every  moment  to  demonstiate  what  is  evident. 

In  the  same  page  : 

Certainly  the  refusal  of  execution  of  the  sentence  exists  in  the  proces.s  as  an  imjiortant  ele- 
men(  among  the  numerous  denials  of  justice  that  we  denounce  against  Venezuela:  i)ut  the 
resistances  of  the  Cal)inet  of  Caracas,  imwairanted  both  as  to  their  (onn  and  rea.-ons,  its  abso- 
lute refusal  to  agree  to  friendly  negotiations,  have  led  our  Government  not  to  sacrifice  any- 
thing for  the  sake  of  peace  and  (o  demand  an  express  conrpronJte  conceived  in  general  terms  in 
order  to  protect  all  (he  rights,  all  the  interests  of  the  French  citizen  who  asked  for  its  protection. 

In  page  Ki: 

In  our  judgment  the  cjuestion  may  ix'  considei'cd  fi-om  iinotlier  point  of  view,  that  of  the 
terms  of  the  protocol,  general  terms  which  autliorizc  the  arl)itralor  to  appreciate  any 
denial  of  justice  duly  proved,  and  permit  Fabiani  to  prc.'unt  all  the  pecuniary  claims  relative 
to  damages  sustained  through  denials  of  justice. 

(The  po(  uniury  iTj)iiration  is  the  cH'cit,  (he  (Iciiial  of  justice  i.s  (lie 
cause). 


OPINION    OF    VENEZUELAN    COMMISSION ER.  89 

If  Fabiani  formulates  cZaim*' having  a?io//¿e/' raí/ .ve  than  the  denial  of  iusiicc,  or  if  it  xhould 
not  clearly  appear  that  therj  are  imputable  to  a  denial  of  justice,  the  arbitrator  shall  purely  and 
simply  disallow  them,  because  they  will  be  without  the  limits  of  the  protocol, 

that  is  to  say,  without  the  law  and  not  without  his  competence  ;  the 
protocol  was  the  law)  ; 

and,  if  he  recognizes  the  responsibility  of  Venezuela  he  will  point  out,  in  the  proportions  his 
conscience  may  suggest  him,  all  the  damages  he  may  judge  to  be  the  direct  and  immediate  con- 
sequence of  the  infractions  committed  by  Venezuela. 

It  will  be  permitted  to  us  to  add  that,  even  if  the  protocol  instead  of  ix-ing  conceived 
in  general  terms  should  have  established  all  the  details  of  the  litigious  points,  it  would  not 
be  necessarily  inferred  therefrom  that  every  motive  or  claim  that  was  not  expressly  enun- 
ciated in  the  protocol  should  be  set  aside,  without  any  discussion,  as  being  without  the 
terms  of  that  protocol. 

If  no  other  difference  is  the  question,  or  if  the  question  is  a  difference  ^wxteriorly  occurred 
between  the  jxirties;  if  the  new  motives  of  demand,  although  they  are  not  expressly  specified 
in  the  protocol,  are  found  therein,  however,  virtually  comprised,  whether  as  an  integral 
part  of  the  litigious  points  designated,  or  as  a  consequence  thereof;  if  the  source  of  those 
motives  is  found  in  the  compromise;  if  the  demand  is  not  different  from  those  which  the  com- 
promise has  foreseen  and  the  settlement  of  which  it  has  had  in  view;  and,  finally,  if  the  motives 
they  pretended  to  have  set  aside  might  later  give  place  to  the  same  debates  as  those  enunci- 
ated in  the  i>rotoco\,  the  arbiter  may  appreciate  the  merits  of  those  motives  and  include  them 
in  his  decision. 

The  new  Denizart  arbitration  No.  10  is  not  less  precise.  The  arbitrators  may  take  cogni- 
zance of  the  accessories  of  the  instance  and  of  all  those  incidents  in  such  a  manner  connected 
with  the  case,  that  it  would  happen,  if  the  judgment  thereof  were  omitted,  that  the  parties 
would  always  be  divided  by  the  same  question  that  had  been  the  object  of  the  protocol. 

Therefore,  when  motii^es  of  demand  not  expressly  enunciated  in  the  protocol  are  con- 
nected with  the  case  itself  in  such  a  manner,  that,  if  the  judgment  thereof  were  omitted,  the 
parties  would  be  left  in  the  presence  of  the  same  litigation,  the  arbitrators  are  competent  to 
take  cognizance  thereof.  Might  it  not  be  added  that,  if  they  were  openly  .set  aside,  the  decis- 
ion might  be  considered  as  rendered  without  the  terms  of  the  protocol? 

It  appeal's  to  us  to  be  very  difficult  to  imagine  an  arbitration  in  which  the  motives  of 
demand,  which  they  pretend  to  have  set  aside  under  the  pretext  that  the  same  are  without  the 
protocol,  may  exhibit  a  greater  connection  with  tiie  facts  that  are  found  expressly  enun- 
ciated therein.  Not  only  they  would  be  supported  in  this  judgment  on  the  same  means  and 
would  require  tiie  same  debates  as  the  motives,  the  admissibility  of  which  is  not  discussed,  but 
it  could  not  be  ignored  that  it  would  be  impossible  to  soundly  appreciate  the  merits  of  the  other 
motives,  if  the  first  denials  of  justice,  the  causes  which  have  been  the  motive  and  the  purpose  of 
the  denials  of  justice  and  are,  therefore,  the  essential  part,  the  ground  of  the  suit,  were  not, 
after  having  constantly  drawn  the  attention  of  the  judge,  to  be  considered  a.s  one  of  the  liti- 
gious points  submitted  to  his  decision. 

The  evident  purpose  of  the  arbitration,  which  purpose  is  justified  b\'  the  general  terms 
of  the  treaty  of  the  24th  of  February,  1891,  has  been  to  decide  whether  there  has  been 
denials  of  justice;  to  fix,  if  there  has  been  any,  the  damages  imputable  to  the  denial  of  justice, 
not  some  damages,  but  all  the  damages  that  Fabiani  claims  to  have  sustained;  to  determine  the 
amount  of  the  reparation  and  to  put  a  definitive  end  to  the  difference  arisen  between  France 
and  Venezuela. 

It  is  important  that  the  deci-sion  to  be  rendered  may,  conformably  to  the  nc'.jle  and 
pacific  formula  of  the  peace  tribunals,  declare  any  new  claim  of  Fabiani  for  denial  of  jus- 
tice inadmissible. 

Everytliing  tends,  therefore,  to  prove  that  the  identity  of  the  nature  of  the  demand,  the 
absolute  similitude  of  the  motives  invoked,  the  links  of  absolute  connection  uniting  the 
alleged  new  motives  with  all  the  others  would  recommend,  if  the   protocol   offered  any 


90  FABIANI    CASE, 

obscurity,  that  questions  the  inadvisibility  of  which  appears  proved  b>jaU  Ou  circumstances  of 
the  suit  should  not  be  separated. 

In  the  statement  of  Fabiani,  he  says,  in  pao^e  615,  when  dealino;  witli 
the  extent  and  justification  of  the  (hiniat^es  and  losses,  the  following: 

If  the  arbitrator,  after  having  examined  and  analyzed  our  different  motives  of  claim,  should 
be  induced  to  recognize  that  all  those  motives  are  justified  and  that  we  have  valued  our  dam- 
ages without  anrexaggeration,  Venezuela  could  congratulate  itself  at  its  insistence  in  having  a 
little  equitable  mode  of  payment  accepted,  since  the  sums  it  would  i)e  obligated  to  deliver  to  us 
would  not  represent  the  actual  amount  of  the  indemnity  that  maj-  be  adjudged  to  us  by  the 
award;  so  that  it  would  not  be  exact  to  say  that  the  author  of  the  infraction  has  paid  and  we 
have  obtained  the  amount  of  the  damage  fixed  by  the  arbitrator.  And  if  it  should  i)e  admit- 
ted that  the  judge,  acting  either  by  way  of  elimination  or  by  way  of  reduction,  should  find  that 
there  is  a  reason  to  restrict  the  measure  of  our  damages,  valued  in  specie,  when  taking  into  con- 
sideration its  conversion  into  3  per  cent  bonds,  at  the  price  of  those  values,  he  could  not,  even 
if  he  should  allow  to  us  the  whole  of  our  demand  in  bonds,  assure  to  us  an  integral  restitution 
unless  his  valuations,  determined  absolutely  according  to  his  conscience,  cause  our  claims  to 
undergo  a  strong  reduction. 

Now,  therefore,  in  short,  if  the  arbitrator  finds  that  our  valuations  have  been  made  justly, 
measuring  the  damage  sustained,  he  will  regret  when  rendering  his  sentence  not  to  be  able  to 
assure  to  us  a  restitution  in  integrum.  And  if  he  considers  it  equitable  to  make  us  sustain  a 
reduction  in  some  of  our  claims,  or  even  if  he  holds  that  some  of  them  must  be  set  aside,  he  will 
find  himself,  de.spite  of  his  taking  into  consideration  the  quotation  of  the  bonds,  in  the  pres- 
ence of  a  true  lesion,  unless  he  considers  himself  to  be  in  the  case  of  reducing,  in  a  notable 
proportion,  the  amount  of  our  claim. 

In  page  622  of  his  statement,  Fabiani,  as  if  he  prejudged  the  decis- 
ion of  the  Swiss  arbitrator,  and  as  if  he  himself  were  dictating  the 
award  that  this  commission  of  arbitration  must  rentier  upon  his  pres- 
ent claim,  states  the  following: 

The  arbitrator  being,  as  every  tribunal,  vested  with  a  sovereign  right  of  appreciation,  with 
a  real  discretional  power  to  fix  the  amount  of  the  reparation  without  the  obligation  of 
expressing  the  motives  that  may  mduce  hmi  to  give  this  sum  instead  of  another,  the  ari)i- 
trator,  we  say,  in  allowing  a  lump  sum  is  not  obligated  to  render  his  award  in  accordance 
with  the  proofs  furnished  by  the  parties  or  to  indicate  the  details  of  the  various  elements 
serving  to  determine  the  just  measure  of  the  damage.  The  compromi.se  puiely  and  simply 
vests  him  with  the  duty  oï  fixing  the  amount  of  the  ítuíemnity,  if  the  responsibility  of  Vene- 
zuela is  found  to  be  grounded. 

The  arbitrator  acts  with  the  plenitude  of  his  independence,  having  no  other  gviide  than 
his  lights  and  his  love  for  justice, /¡e  enquires  ;  whether  such  a  prejudicer  or  surh  a  damage  has 
been  the  direct  and  necessary  consequence  of  the  infractions  that  have  engaged  the  resjions-ihihty 
of  the  defendant;  from  the  moment  his  judgment  and  his  conscience  give  him  the  conviction 
that  the  prejudices  and  damages  can  not  \w  separated  I  rom  the  reproached  infractions,  that 
they  can  not  have  had  other  causes,  he  is  dispensed  with  deviating  into  the  labyrinth  of 
more  or  less  immediate  or  more  or  less  remote  conser|uences,  and  especially  in  our  allair  it 
will  be  easy  for  him  to  convince  himself  that  no  intermediate  fad  has  come  to  divide  respon- 
sibilities; that  no  occurrences  alienate  from  the  reproachable  facts  imputed  to  the  author  of 
the  infraction  can  have  exercised  or  has  exercised  any  mjluence,  however  smalt  it  may  be,  on 
the  disastrous  consequences  of  the  facts  charged.  It  is  tho.«e  acts,  namely,  tli(>  illegal  obstacles 
opposed  to  the  exercise  of  our  rights,  iho  fails  du  prince,  m  the  most  brutal  acce|itation  of 
this  word,  that  constitute  the  07ihi  cau.'<e  of  the  l!>s.ies  we  have  sustained,  and  it  is  impossible 
even  to  suggest  that  otiier  causes  would  have  produced  the  same  lo.sses  and  the  .same  disa.s- 
Irous  ed'ecis,  il'  Iho.se  nhslaclis  and  those  faits  du  pruur  liiid  not  e\is|e<l. 


OPINION    OF    VENEZUELAN    COMMISSIONER.  91 

It  may  be  that  the  studij  of  our  affair,  and  llie  detailed  examination  of  the  numerous  items 
of  our  claims  suggest  to  the  arbitrator  either  the  opinion  that  some  of  our  claims  have  no  direct 
and  immediate  connection  with  the  infractions  denounced,  or  the  opinion  that  certain  damnges 
indicated  by  us  7nust  he  fired  at  a  less  high  figure.  That  is  the  right  of  the  arbitrator ,  and  the 
exercise  of  that  right  is  subordinated  only  to  the  inspirations  of  his  conscience. 

After  these  clear  avowals  and  clear  statement  made  by  Fabiuni  of 
the  object  of  the  demand  decided  by  the  vSwiss  arbitrator,  of  the  connec- 
tion of  all  the  points  of  the  claim,  of  the  p()ssil)ility  that  some  of  those 
items  of  the  claim  might  not  have  a  direct  or  indirect  connection  with 
the  infractions  constituting  denials  of  justice,  of  the  power  recognized 
in  the  arbitrator  to  proceed,  by  elimination  or  reduction,  to  fix  the 
amount  that  Venezuela  was  to  pay,  in  case  its  responsibility  were 
established,  setting  aside  everything  that  might  not  be  considered  as 
grounded  within  the  general  terms  of  the  protocol,  in  order  to 
arrive,  by  accepting  all  or  part  of  the  claims  in  question,  at  an  end  of  the 
difference  or  demand  between  France  and  Venezuela,  we  can  only 
regard  as  a  chimera  the  pretention  that  the  award  of  Berne  left  without 
a  definitive  decision  any  of  the  claims  of  Fabiani  against  A'enezuela 
that  were  the  subject  of  the  suit.  The  grand  total  of  the  claim  that 
Faliiani  made  amount  to  the  sum  of  46,944,563.17  francs,  and  the 
Swiss  arbitrator  fixed  at  the  sum  of  4,346,656.51  francs,  was  the  object 
of  the  suit,  the  subject-matter  of  the  analysis,  the  proofs  and  debates, 
as  to  what  the  arbitrator  was  to  allow  for  denials  of  justice,  if  these 
were  proved.  The  facts  debated  were  all  those  that  Fabiani  alleged  as 
the  grounds  of  the  different  items  of  the  claim  ;  the  powers  of  the  arbi- 
trator to  judge  and  decide,  those  that  the  arbitration  protocol  of 
the  24tli  of  February,  1891,  conferred  upon  him,  without  limitations  of 
appreciation  ;  the  law  or  norm  to  which  he  w  as  to  conform  his  judgment 
and  the  decisions  of  his  ccniscience,  the  denial  of  justice  on  the  part  of 
Venezuela,  duly  established;  the  effect  or  result  of  that  judgment  and 
of  that  sentence  being  the  object  of  the  demand,  the  determination  of  the 
amount  of  the  indemnity,  recognizing  all  or  part  of  the  claims  in  ques- 
tion or  declaring  A'enezuela  exempted  from  responsibilities. 

The  arbitrator,  exercising  his  sovereign  powers  of  appreciation, 
eliminated,  when  fixing  the  amount  of  the  indenuiity,  poi))ts  or  sums  of 
the  claim  of  Fabiani,  because  he  considered  them  as  absolutely 
excluded  from  his  decision,  as  they  rested  on  facts  alien  to  the  denial 
of  justice.  In  making  this  elimination,  lie  judged,  rejected,  climiuated, 
or  disallowed  them  (these  are  synonymous  words),  because  they  did 
not  represent  effects  or  consequences  of  denials  of  justice,  the  only  cause 
which,  according  to  the  protocol,  made  Venezuela  incur  responsibilities. 

Amply  exercising  also  his  powers  of  aj)precia(ion,  he  consicU^red 
some  facts  as  denials  of  justice,  he  considered  th(>  responsibility  of 
Venezuela  aggravated  ])y  the  existence  of  vcriiún  flits  du  prince,  as 
inchcations  of  the  hostile  attitude  of  \'enezuela  against   Fabiani  and 


92  FABIANT    CARE. 

molivos  of  incitation  for  the  judicial  authorities  to  the  denial  of  justice; 
and  he  made  use  of  the  means  of  proofs  and  alleg;ations  with  the  pur- 
pose to  establish  the  existence  of  other  concluding  and  connected 
facts  relating  to  the  denials  of  justice. 

By  the  proceeding  of  elimination  and  reduction  of  the  several  sums 
to  which  Fahiani  made  his  claim  amount,  the  arbitrator  fixed,  as  the 
total  indemnit}'  that  \'enezuela  was  to  deliver  to  Fabiani,  the  sum  of 
4,346,656.51  francs  for  the  following  respects: 

Francs. 

1.  Koncayolo's  debt 124, 177.  55 

2.  Income  for  pilot  service  for  Decetnbcr,  1877,  to  the  15th  of  July,  1882...  68,  312.  45 

3.  Income  for  towing  service  from  1880, 1881,  to  the  1.5th  of  July,  1882  ... .  2.'>1,  1(50.  51 

4.  E.xpenses  for  the  execution  of  the  sentences,  including  interest 200, 000. 00 

5.  Material  and  moral  damage  caused  Fabiani  by  his  bankruptcy 1 ,  SOO,  000.  00 

6.  Indirect  damage,  compound  interest,  and  an  indemnit}'  for  the  profit  that 

Fabiani  might  have  derived  in  his  business  from  the  investment  of  the 
.sums  2  and  3,  taking  into  consideration  the  realization  of  a  mortgage  for 
120,000  francs 1 ,  .500,  000.  00 

7.  Costs  of  the  international  instance 100, 000.  00 

Total 4.  346,  656.  51 

It  is  evidenced  by  the  foregoing  demonstration  that  the  Swiss 
arbitrator  decided  all  the  connected  points  of  the  claiin  of  Fabiani  that 
are  minutely  determined  in  tlie  nine  paragraphs  comprising  the  object 
of  the  demand,  according  to  the  classification  made  by  the  arbitrator 
in  page  11  of  the  sentence,  namely: 

First,  the  reparation  of  the  damage  sustained  ; 

Second,  the  gain  frustrated; 

Third,  the  interest  calculated  from  the  date  of  the  damageable  acts; 

Fourth,  the  compound  interest; 

Fifth,  the  sacrifices  made  by  the  injured  party  for  the  maintenance 
of  his  industry  ; 

Sixth,  the  prejudice  deriving  from  the  expense  made  and  from  the 
time  lost  to  arrive  at  the  execution  of  the  sentences; 

Seventh,  the  damages  to  be  considered  as  the  necessary  consequences 
of  the  offenses; 

Eighth,  the  damage  done  by  the  privation  of  work  in  the  future,  and 

Ninth,  the  reparation  of  the  moral  prejudice. 

The  sentence  of  the  Berne  tribunal  fixes  the  amount  of  the  indem- 
nity for  all  the  aforesaid  causes  in  a  less  sum  than  that  established  by 
Fabiani,  the  arbitrator  using  in  this  point  his  free  power  of  apprecia- 
tion, but  admitting  in  principle  all  the  conclusions  of  the  demand. 

Such  is  expressly  declaretl  b}-  the  scMitence  in  its  final  paragraph  C, 
Part  VI,  page  47,  running  as  follows: 

As  to  tlie  cost  of  the  present  instance,  the  arbitrator,  making  it  to  n|)pear  that  the  con- 
clu.sions  of  the  petition  are  adjudged  in  principle,  but  that  the  exaggeration  of  the  claims 
put  forward  has  occa.sioned  useless  expense,  charges  the  respondent  Govermncnt  with  the 


OPINION    OF    FRENCH    OOMMTSSTONER.  93 

expense  of  tlio  cliiiining  government,  liciniduted  at  tlic  sum  of  1(X),(KM)  fnincs,  and  compen- 
sates between  the  parties  the  expense  of  the  arbitration. 

P'or  all  the  reasons  above  expressed  the  arbitrator  for  Venezuela  is 
of  opinion  that,  as  there  exists  an  award  passed  and  adirnied  on  all  and 
every  one  of  the  points  comprised  in  the  demand  decided  by  the  Swiss 
arbitrator,  and  originated  by  the  claims  of  Antonio  Fabiani  against  the 
Government  of  Venezuela,  in  accordance  with  the  compromise  entered 
into  between  said  Government  and  the  Government  of  France,  on  the 
24th  of  February,  1801,  every  new  demand  of  indemnity  on  the  part 
of  Fabiani  referring  or  confined  to  the  same  claims  that  were  the  object 
of  that  protocol  and  of  the  subsequent  suit  and  sentence,  tried  and  ren- 
dered by  the  tribunal  of  arbitration  at  Berne,  is  inadmissible. 

He,  therefore,  absolutely  rejects  the  demand  of  indenmity  which  has 
given  a  motive  for  this  opinion. 

Caracas,  May  30,  1903. 

NOTE    BY   THE    VENEZUELAN   COMMISSIONER. 

The  French  arl)itrator  was  of  opinion  tliat,  as  tiierc  was  no  sentence  passed  and  aflirnied 
on  the  points  of-tliis  claim,  ho  admitted  it  for  its  integral  amount,  and  consequently,  as 
appears  from  the  records  of  the  proceedings,  it  was  referred  to  the  decision  of  the  umpire. 


OPINION  OF  THE  FRENCH  COMMISSIONER. 

Doctor  Paill  has,  without  examining  it  dee])ly  nor  discussing  the 
figures  submitted  by  the  claimant,  rejected  the  claim  presented  by  M. 
Antoine  Fabiani  as 

having  alivady  b(>cn  decided  by  the  court  of  ari)itration  of  Berne,  the  sentetice  of  whicii 
has,  in  his  opinion,  passed  definitely  upon  all  the  leading  points  of  tlie  iiideimiity  presented 
by  M.  Fabiani. 

The  Venezuelan  arbitrator  considers  that  the  President  of  the  Swiss 
Confederation  has  eliminated  a  certain  number  of  the  points  of  the 
claim  because  the  facts  u])on  which  these  are  founded,  being  foreign  to 
the  judicial  authorities  of  the  respondent  State,  do  not  make  Vene- 
zuela responsible.  This  elimination  does  not  constitute  in  his  eyes  a 
declaration  of  want  of  jurisdiction  based  upon  the  terms  of  the  agree- 
ment of  the  24th  of  February,  1891,  but  it  would  establish  that  these 
facts  are  not  of  a  nature  to  justify  the  demands  for  indemnity.  It  is 
upon  this  theory  that  M.  Lachenal  woidd  have  definitely  put  them 
aside.  Consequently  ^I.  Fabiani  could  not,  according  to  Doctor  Paúl, 
be  admitted  to  present  before  the  court  of  arbitration  appointed  by  the 
protocol  of  the  19th  of  February,  1902,  a  new  claim,  his  cause  having 
been  already  entirely  and  definitely  settled.  Finally,  my  honorable 
colleague  observes  incidentally  that  M.  Fabiani  has  waited  six  years 
since  the  award  of  Berne  has  been  effective  for  setting  up  his  new 
claim.  On  the  contrar^'^,  from  the  reading  of  the  award  rendered  the 
30th  of  December,  1896,  b}^  the  President  of  the  Swiss  Confederation, 


94  FABTANI    CASE. 

I  liavc  coucludecl  that  the  arbitrator  had  sot  aside  all  the  points 
renewed  to-day  by  M.  Fabiani,  not  because  they  could  not  in  anyway 
place  the  resi)<)iisibility  upon  Venezuela,  but  only  because  they  are  not 
in  accord  with  the  agreement  of  arl)itration  si>;ned  the  24th  of  Febru- 
ary, 1891,  by  the  two  Governments.  M.  Lachenal  has  then  contented 
himself,  in  my  opinion,  to  declare  himself  incompetent  to  examine  the 
said  claims,  which  b}'  tliis  verj*  fact  find  themselves  reserved  for  the 
examination  of  the  court  of  arbitration  instituted  by  the  protocol  of 
Fel)ruary  19,  1902.  He  has  in  no  way  decided  that  these  main  points, 
upon  which  he  has  refused  to  render  a  decision,  could  not  form  the 
object  of  any  demand  for  indemnity.  ^Vfter  having  said  in  fact,  on 
page  22  of  the  award  : 

It  results,  from  the  evidence  of  the  very  text  of  the  agreement  and  from  the  ensemble  of 
the  facts  of  the  case,  that  the  respondent  Government  is  sued  solely  by  reason  of  the  non- 
execution  b\^  the  Venezuelan  authorities  of  the  arbitral  award  rendered  at  Marseilles  on  the 
date  of  the  1.5th  December,  18S0,  between  Antoine  Fabiani  on  one  part,  Benoit  and  André 
Roncayolo  on  the  other  part. 

M.  Lachenal  adds,  on  page  2.5: 

In  return  Venezuela  does  not  incur  any  responsibility,  according  to  the  agreement,  on 
account  of  facts  foreign  to  the  judicial  authorit}'  of  the  defendant  State.  The  claims  which 
the  petition  bases  upon  fa?7s  du  prince,  which  are  either  changes  of  legislation  or  arbitrary 
acts  of  the  executive  power,  are  absolutely  withdrawn  from  tlie  decision  of  the  arbitrator, 
who  eliminates  from  the  procedure  all  the  allegations  and  means  of  proof  relating  thereto, 
as  long  as  he  could  not  reserve  them  to  establish  other  concluding  and  connected  facts  rela- 
tive to  the  denials  of  justice. 

In  his  desire  to  state  very  precisel}'  the  object  of  the  litigation  follow- 
ing the  agreement,  M.  Lachenal  even  fixed  the  date  (Jime  7,  ISSl)  after 
which  the  denials  of  justice  ought  to  be  produced  in  order  that  by  their 
act  it  might  be  possible  according  to  the  agreement  to  again  hold  Vene- 
zuela to  responsibility.  Is  this  to  say  that  for  ever}'  denial  of  justice 
previous  to  this  date  M.  Fabiani  would  not  have  been  able  to  demand 
indemnity  from  the  Venezuelan  Government  before  anj-  tribunal  had 
it,  like  this  one,  the  most  extended  jurisdiction?  It  woidd  not  be 
more  unreasonable  and  more  unjust  to  pretend  that  to  refuse  to  M. 
Fabiani  the  right  of  a  compensation  from  the  fact  of  the  main  point 
of  the  claim  which  he  raises  again  before  this  new  court.  The  decla- 
ration of  want  of  jurisdiction  of  the  arbitrator  is  clear,  but  it  does  not 
constitute  in  any  way  a  patent  of  irresj^onsibility  for  Venezuela 
because  of  arbitrary  acts  of  its  government  ])rejudicial  to  M.  Fabiani, 
who  remained  free  to  demand  reparation  before  a  coiu't  of  which  (he 
jurisdiction  would  not  be  limited,  as  that  of  the  court  of  Berne,  by  (he 
terms  of  a  n^strictive  compromise.  Such  is  (he  case  of  (he  court  of 
arbitration  instituted  by  (he  protocol  of  the  I9(h  of  r\'bnuiry,  1902, 
which  regards  in  a  geiuu'al  way,  of  whatever  nature  they  may  be,  all 
the  demands  for  iud(>nmi(i(\s  presented  by  Frenchmen  and  founded  on 
acts  anterior  to  May  23,  1899. 


OPINION  OF  frp:nch   COMMISSIONKK.  95 

Tliis  time  the  Venezuelan  Government  can  not  maintain,  as  in  1S91, 
that  only  denials  of  justice  of  a  special  character  can  fix  the  responsi- 
bility upon  Venezuela.  Besides,  a  great  number  of  claims  presented 
to  the  courts  of  arbitration  which  sat  last  year  at  Caracas  liad  pre- 
cisely fora  foundation,  not  denials  of  justice  charo;eable  to  the  judicial 
power,  but  to  faits  du  prince  analogous  to  those  of  which  M.  Fabiani 
has  been  the  victim,  and  there  resulted  for  the  Venezuelan  Govern- 
ment condemnations  to  very  extensive  pecuniary  reparations.  Besides, 
one  can  not  allege  a  grievance  against  M.  Fabiani  for  having  waited  to 
present  his  new  claim  until  a  court  of  arbitration  shoidd  have  been 
formed  to  judge  it.  One  knows,  in  fact,  that  the  decision  of  the  arbi- 
trator of  Berne,  on  the  on?  hand,  bears  the  date  of  the  30th  of  Decem- 
ber, 1896,  and,  on  the  other,  from  1895  to  1903  all  the  claims  of  the 
French  against  the  Venezuelan  Government  have  remained  in  sus- 
pense, the  diplomatic  relations  between  these  two  countries  being 
themselves  suspended.  I  consider  in  consequence  that  the  plea  of 
res  judicata  can  not  reasonabh^  be  invoked. 

The  main  points  of  the  claim  presented  by  M.  Fabiani  have  not 
been  adjudged  by  the  arbitrator  of  Berne.  He  has  not  been  able 
then  to  declare  that  ihej  did  not  permit  absolutely  any  demands  for 
indemnity.  M.  Lachenal  has  not  raised  the  facts  by  reason  of  w^hich 
M.  Fabiani  demands  to-day  some  indemnities  except  as  indications 
of  the  ill  will  of  the  executive  power.  He  has  thereby  recognized 
their  existence  and  established  their  injurious  character.  ^I.  Fabiani 
then  only  uses  a  legitimate  right  in  reclaiming  before  this  new  juris- 
diction with  unlimited  power  in  whatever  concerns  the  French  claims 
previous  to  the  23d  of  May,  1899,  an  equitable  reparation  for  the 
large  damages  which  these  acts  have  caused  him. 

In  referring  to  the  memoirs  prepared  by  the  interested  party  one  is 
seized  vrith  astonishment  at  the  multitude  of  arbitrary  acts  of  every 
kind  which  M.  Fabiani  proves  by  his  invincible  arguments  and 
authentic  documents  he  has  had  to  suffer  since  his  establishment 
at  Venezuela.  During  my  sojourn  in  this  country  I  have  found, 
whether  at  Caracas  or  at  Maracaibo,  among  established  foreigners 
and  the  Venezuelans  that  no  attachment  with  the  Government  pre- 
vents from  being  impartial,  a  unanimous  agreement  in  recognizing 
that  M.  Fabiani  had  been  pursued  for  long  years  by  the  hatred  of  the 
executive  power  of  which  the  evident  end  was  to  strip  him  of  his  capi- 
tal and  the  fruits  of  his  labors  without  anything  in  the  conduct  and 
attitude  of  this  foreigner  justifying  or  even  explaining  such  animosit}". 
I  have  read  with  attention  the  memoir  and  the  conclusions  remitted 
by  M.  Fabiani.  I  have  not  found  therein  any  inaccuracy  nor  any 
exaggeration.  I  have  found  to  the  contrary,  as  in  the  dossier  of  the 
proofs  furnished  in  support,  the  constant  care  to  be  minutely  precise. 
As  moreover  none  of  his  demands  have  been  contested  in  the  founda- 


96  FABIANI    CASE. 

tion  iind  in  tlie  fibres  by  the  respondent  Government,  it  lias  not 
appeared  possiy)le  to  me  to  put  them  aside  or  to  reduce  the  amount. 
I  have  consequently  accorded  to  M.  Fabiani  the  indemnity  which  he 
claims. 

Doctor  Paúl  has  insisted  on  havinp;  stated  in  the  minutes  of  the 
meetincis  of  the  commission  that  my  decision  had  not  been  i)receth'd 
by  any  discussion  between  the  arbitrators  upon  the  amount  of  the 
claim  which  he  rejected  for  an  interlocutory  reason.  It  is  really  because 
my  colleacrue  has  not  discussed  the  figures  presented  by  M.  Fabiani 
that  I  have  been  under  the  oblio;ation  of  accepting;  them  as  a  whole. 
They  have  not  seemed  to  me  exagjojerated,  and  the  interested  party 
has  naturally  not  furnished  me  with  the  means  of  contest int;  them. 
I  am,  moreover,  far  from  believinij,  if  I  may  judjic  by  the  defense 
remitted  to  the  arbitrator  of  Berne,  that  the  Venezuelan  Government 
has  not  been  sorry  to  intrench  itself  behind  the  plea  of  res  judicata 
by  means  of  an  interpretation  of  the  award  which  seems  to  me  inad- 
missible. Conscientiously,  then,  I  judge  that  the  Venezuelan  Gov- 
ernment ought  to  turn  over  to  M.  Fabiani  as  an  indemnity  a  sum  of 
9,509,728.30  francs. 

In  conclusion,  I  think  I  ought  to  submit  two  considerations  to  the 
particular  attention  of  the  umpire. 

First,  one  can  notice  in  running  through  the  memoir  ])resentod  l)y 
M.  Fabiani  to  the  arbitrator  of  Berne  and  the  award  of  M.  Lachenal 
that  all  the  figures  asked  by  the  claimant  and  retained  l)y  the  arbitra- 
tor as  comprisetl  in  or  receiving  their  source  in  the  award  of  Marseilles 
have  been  recognized  as  exact  and  admitted  by  M.  Lachenal  without 
any  reduction.  This  observation  is  not  without  value  and  ought  to 
remain  present  in  the  mind  while  one  examines  the  figures  ])resented 
in  course  of  this  claim.  It  is  honorable  for  M.  Fabiani,  whose  exam- 
ple in  this  is  very  rarely  followed  by  foreigners  who  enter  complaint 
against  Venezuela. 

Moreover,  it  is  to  be  considered  that  according  to  the  terms  of  tlie 
protocol  indemnity  ought  to  be  paid  in  bonds  of  the  di)ilomatic  (lei)t 
and  not  in  gold.  Thanks  to  this  concession,  granted  by  the  French 
Government  to  the  Venezuelan  Government  in  order  to  allow  it  to 
pay  its  debts  with  greater  ease,  the  amount  of  the  indenmity  becomes 
singularly  reduced  in  reality.  The  bonds  issued  by  the  (îovernnuMit 
of  Caracas  have  a  real  value,  which  is  always  very  much  less  than  their 
nominal  value.  In  May,  1903,  they  reached  a  depreciation  of  30  per 
cent.  In  December,  1903,  they  sank  to  70  per  cent  of  their  value. 
For  some  months  their  real  v;.hie  seems  to  have  st(.)j)ped  at  10  per 
cent  of  the  nominal  value.  It  woukl  be,  then,  if  the  umi)ire  should 
partake  of  the  sentiment  of  the  French  arbitrator,  a  little  less  th>  n 
4,000,000  bolivars  in  gold  \\hich  Fabiani  would  leceive  and  llu'Go\- 
ernment  of  Venezuela  would  have  to  remit. 

August  2,  1004. 


ADDITIONAL    OPINION    OF    VENEZUELAN    COMMISSIONER.         97 
ADDITIONAL  OPINION  OF  THE  VENEZUELAN  COMMISSIONER. 

Before  preparin<^  the  opinion  I  submitted  at  the  sitting  of  ^iay  30, 
1903,  which  I  submit  herewith,  translated  into  Enghsh,  rejecting  the 
claim  filed  by  A.  Fabiani  against  the  Government  of  Venezuela  for  the 
amount  of  9,509,728.30  francs,  I  made  a  complete  investigation  of 
the  facts  upon  which  the- claimant  bases  his  contention.  It  was  after 
becoming  thorougldy  ac([uainted  with  the  peculiar  circumstances  of 
the  case  and  based  on  the  reason  contained  in  my  opinion  as  afore- 
said that  I  rendered  the  following  decision  : 

That  because  there  existed  a  condition  of  res  judicata  covering  each  and  every  one  of  the 
points  contained  in  the  case  decided  by  the  Swiss  arbitrator,  originating  in  the  claims  of 
Antoine  Fabiani  against  the  Government  of  Venezuela,  in  accordance  witli  the  convention, 
made  between  tiic  latter  Government  and  that  of  France  on  February  24,  1891,  any  new 
claim  for  indemnification  made  l)y  Fabiani  is  inadmissible  if  referring  to  or  containing  the 
same  contentions  which  originated  said  agreement  and  the  subsequent  hearing  of  the  case 
and  sentence  passed  by  the  Arbitration  Court  of  Berne. 

The  French  commissioner,  at  the  session  above  referred  to,  did  not  go 
beyond  stating  liis  opinion  that  the  Swiss  commissioner  had  laid  aside 
all  the  points  originating  the  claim  entered  anew  by  Fabiani  as  not 
included  in  the  arbitration  agreement  signed  on  February  24,  1891, 
by  the  two  Governments,  and  that  the  President  of  the  Swiss  Confed- 
eration having  declared  himself  disqualified  to  examine  the  several 
complaints  on  the  same  grounds  above  mentioned,  such  contentions 
were  therefore  a  proper  subject  of  investigation  by  the  commission 
created  by  the  Paris  protocol.  M.  de  Peretti  ended  by  admitting 
Fabiani's  claim,  acknowledging  its  sound  basis,  and  granting  the  full 
amount  of  the  claim. 

In  order  to  be  able  to  fully  understand  the  points  relating  to  the 
convention  made  on  February  24,  1891,  between  the  French  and  the 
Venezuelan  Governments,  the  object  of  said  convention,  the  ends  both 
Governments  endeavored  to  attain,  the  extent  of  the  arbitration  agree- 
ment entered  into,  the  claims  that  were  to  be  properly  admitted  to  the 
examination  and  decision  of  the  umpire  at  Berne,  and  in  order  to  prop- 
erly establish  if  M.  Fabiani  may  or  may  not  introduce  before  this  com- 
mission a  new  claim  embracing  facts  and  circumstances  antedating 
said  convention,  but  included  in  the  arbitration  agreement  and  sub- 
mitted to  examination  and  decision  at  Berne  in  compliance  with  the 
protocol  of  1891,  it  becomes  necessary  to  bring  before  us  the  precise 
language  of  said  convention  and  the  antecedents  or  official  communi- 
cations passed  through  diplomatic  channels  preceding  such  convention 
and  wliich  sufficiently  explain  the  causes  originating  the  arbitration 
agreement,  the  nature  and  circumstances  of  the  facts  or  claims  entered 
by  M.  Fabiani,  and  the  action  the  French  Government  deemed  proper 
to  enter  against  the  Government  of  Venezuela  m  order  to  safeguard  all 
a.  Doc.  533,  59-1 7 


98  FAHIANI    CASK. 

tlie  righta  and  all  the  intereHt.s  of  the  French  citizen  wIkí  had  invoketl  its 
protection. 

I  beg  to  submit  herewith  Spanish  and  Knghah  copies  of  the  conven- 
tion made  in  Caracas  on  Febniarv  24,  1891,  between  the  representa- 
tives of  the  French  and  tlie  Vene/Aielan  Governments,  tlie  iirst  para- 
gra))h  of  wliicli  contains  the  following  language: 

Tlie  Guvermm-nt  of  tlii'  United  States  of  \'enczuelti  and  tlie  Government  of  tlie  Frencli 
Kepuljlie  have  a<;reed  to  submit  to  an  umpire  the  claimn  of  M.  Antonio  Fabiaiii  against  tlie 
Venezuelan  Government.         * 

It  is  not  ])ossible  to  find  in  any  convention  of  like  nature  a  clearer 
ex])o.sition  or  a  wider  scope  as  regañís  the  object  of  the  arbitration. 
The  agreement  was  to  submit  to  an  um])ire  the  claims  of  M.  Antonio 
Fabiani — that  is,  the  claims  of  M.  Fabiani  against  the  Government  of 
^'enezuela  u})  to  the  date  of  the  convention — and  no  doubt  whatever 
can  exist  as  regards  this  conclusion,  as  otherwise  the  object  for  which 
the  convention  was  made  would  be  defeated. 

No  limitation  was  placed  upon  any  claims  M.  Fabiani  migiit  have 
had  against  tlie  Venezuelan  Government,  nor  can  it  be  supposed  that, 
the  object  of  the  convention  being  to  finally  close  a  long  diplomatic 
process  during  wliich  France  had  most  energetically  maintained  the 
necessity  of  Venezuela  su})mitting  to  arbitration  Fabiani's  claims,  a 
protocol  shoidd  be  concluded  between  both  countries,  the  terms  of 
wliich,  while  agreeing  to  arbitration  proceedings,  should  except  certain 
portions  of  claims  which  kept  their  friendly  relations  disturbed.  A 
foreign  office  as  important  and  enlightened  as  that  of  France  can  not 
father  such  absurdities. 

The  first  paragraph  of  the  convention  of  February  24,  1S91,  having 
determined  the  original  object  of  the  arbitration— i.  e.,  lùihiani^s 
claims — Article  I,  which  immeiliately  follows,  makes  the  ¡"ollowing 
stipulation  : 

The  umpire  shall  *  *  *  determine  if  in  conformity  with  the  laws  of  \'enezuela,  the 
general  principles  of  the  law  of  nations,  and  the  convention  in  force  between  the  two  con- 
tracting powers,  the  Venezuelan  Government  is  respon-sible  for  ihe  damages  which  M. 
Fabiani  alleges  to  have  suffered  because  of  denial  of  justice. 

The  clear  and  precise  language  of  this  article  shows  how  far  did  both 
Governments  consider  it  necessary  to  impress  upon  the  umpire's  mind 
in  uneijuivocal  terms  that  the  claims  or  damafjcs  that  is,  those  to  be 
sid)mitted  for  his  investigation — which  M.  Fabiani  allajal  to  have  suf- 
fered through  denial  of  justice,  were  to  be  determined  in  conformity 
with  the  laws  of  Venezuela,  the  general  ]u-inciplcs  of  tlu^  law  of  nations, 
and  the  convention  in  force  between  the  two  contracting  |)owcrs,  in 
order  to  iix  the  resj)onsibilitij  of  the  Venezuelan  Government  according 
to  such  laws,  principles,  and  convention. 

"  The  damages  irhich  M.  Fabiani  alleges  to  hare  suffered."  .Vccord- 
ing  to  such  language,  what  is  that  which  Fabiani  alleges  to  have  suf- 


ADDITIONAL    OPINION    OF    VENEZUELAN    COMMISSIONER.         99 

fered?  Common  sense  will  say  "the  damages."  For  wiiat  cause  does 
Fabiani  allege  to  have  suiïered  such  damages  Í  Because  of  the  denial 
of  justice.  How  is  the  umpire  to  view  the  denials  of  justice  which 
Fabiani  alleges  have  originated  the  (himages  sud'ered,  now  submitted 
to  the  iun])ire's  decision?  According  to  the  laws  of  N'enezuela,  the 
general  principles  of  the  law  of  nations,  and  the  convention  in  force 
between  the  two  powers.  It  is  thus  seen  that  the  above-(|U()ted  arti- 
cle clearly  specifics  the  three  elements  which  constitute  the  object  of 
the  arbitration — i.  e.,  the  damages  suffered  by  Fabiani  in  ^'enezuela, 
submitted  to  the  umpire  in  the  shape  of  claims,  the  cause  of  such 
claims  or  damages  which  Fabiani  made  solely  dependent  upon  the 
denials  of  justice,  and  the  standard  which  the  umpire  nmst  follow  to 
find  out  whether  or  not  there  has  been  a  denial  of  justice  as  the  funda- 
mental and  only  basis  of  the  claims  or  damages  alleged  by  Fabiani  at 
the  time  of  the  convention. 

Article  II  of  the  convention  reads  as  follows  : 

To  fix,  should  such  liabiUty  be  found,  for  the  whole  of  the  clabus  in  queation  or  an  y  ¡lortion 
thereof,  the  amount  of  the  pecuniary  indemnification  that  the  Venezuelan  Government  must 
make  to  M.  Fabiani,  which  shall  be  paid  in  3  per  cent  bonds  of  the  diplomatic  debt. 

According  to  this  article,  the  Berne  umpire  was  to  fix  at  a  certain 
sum  the  amount  of  the  pecuniary  indemnification  should  it  l)e  found 
that  Venezuela  was  liable  for  the  whole  of  the  claims  or  atLtj  portion 
thereof  entered  by  Fabiani.  That  portion  of  the  claim  for  which  the 
umpire  found  Venezuela  to  be  responsible,  fixing  the  amount  at 
4,346,656.57  francs,  w^as  delivered  to  M.  Fabiani  in  com])liance  with 
said  Article  II  in  3  per  cent  bonds  of  the  diplomatic  debt.  That  por- 
tion of  the  claim  for  wliich  the  umpire  found  that  ^\'nezuela  was  not 
liable  was  rejected;  and  he  also  adjudged  that  there  was  no  denial  of 
justice  as  alleged  by  Fabiani  to  be  the  cause  of  damages  of  that  ])ortion 
of  the  claim  rejected,  and  also  declared  that  the  amounts  claimed  for 
the  justified  damages  were  grossly  exaggerated.  lie  so  declar(>s  in  a 
conclusive  maimer  in  final  Paragraph  C,  Part  VI,  page  47  of  the  origi- 
nal award,  which  reads  as  follows  : 

As  regards  the  expenses  in  this  appeal,  the  umpire,  while  declaring  that  the  conrhifiionti  in 
the  case  are  admitted  in  principle,  but  that  the  eragijeration  of  the  claims  made  has  caused 
unnecessary  expenses,  estimates  the  liquidated  expenses  of  the  claimant  Government  against 
the  respondent  Government  in  the  sum  of  100,000  francs  and  divides  between  the  two 
the  arbitration  expenses. 

Such  declaration,  which  the  Berne  umpire  found  indispensable  to 
make,  irrevocably  fixes  the  true  condition  of  Fabiani's  claims,  which 
were  the  subject  of  arbitration,  in  respect  to  the  Government  of  ^'en- 
ezuela.  The  conclusions  in  the  case  were  admitted  in  principle,  but 
there  was  exaggeration  in  the  claims  made.  Fabiani  won  the  case, 
obtained  a  gain  de  cause  as  regards  the  liability  of  ^'enezuela  as  found 
by  the  umpire  growing  out  of  denials  of  justice  which  constitutetl  the 


100  FABIANI    CASE. 

main  cause  of  the  claims  Fabiani  endeavored  to  establish  against 
Venezuela,  but  the  claims  made  were  found  by  the  umpire  to  be 
exaggerated,  so  he  reduced  them  to  the  amount  given  in  the  award. 

The  claims  Fabiani  has  again  presented  to  have  examined  by  this 
commission  are  the  same  as  those  submitted  to  the  Berne  tril)unal, 
the  umpire  then  accepting  in  principle  the  conclusions  in  the  case, 
but  finding  that  the  claims  were  exaggerated.  My  argument  in  regard 
to  this  issue  is  more  fidly  expressed  in  my  opinion  of  May  30,  1903. 

I  also  beg  to  submit  with  this  additional  opmion  copy  of  the 
diplomatic  correspondence  passed  between  the  Governments  signa- 
tory to  the  convention  of  February  24,  1891,  in  the  years  1S89  ami 
1890,  preceding  such  convention,  wherein  it  is  showTi  that  both  Gov- 
ernments were  animated  by  the  purpose  of  definitively  settling  Fabiani's 
claims  by  means  of  the  arbitration  agreement  made  in  1891 .  I  beg  to 
call  the  honorable  umpire's  attention'to  the  following  paragraphs: 

His  excellency  M.  Blanchard  de  Farges,  minister  of  France  in  Car- 
acas, to  Mr.  P.  Casanova,  minister  of  foreign  relations,  note  of  Decem- 
ber 31,  1889: 

To  judge  from  the  very  particular  interest  taken  in  France  to  settle  this  matter  (P^abiani's 
claim)  and  the  regrettable  turn  wliich  unhappily  has  been  formerly  given  to  your  excellency's 
administration  and  my  arrival  in  Caracas,  I  hold  the  certainty  that  my  Government  would 
see  in  the  manifestation  of  more  favorable  dispositions  as  regards  said  claim  the  clearest  evi- 
dence of  the  desire  of  the  eminent  President  of  the  Republic  of  Venezuela  and  of  yourself  to 
establish  between  the  two  countries  a  cordiality  toward  which  all  my  efforts  are  bent. 

Mr.  P.  Casanova,  minister  of  foreign  relations  to  his  excellency  M. 
Blanchard  de  Farges,  note  of  January  14,  1890: 

After  the  consideration  of  your  excellency's  note  of  December  31,  ultimo,  wherein,  while 
referring  to  the  interviews  we  have  held  in  regard  to  several  pending  matters  between  the 
two  Governments,  but  without  expressing  the  grounds  the  French  Republic  may  have  to 
insist  upon  the  Fabiani  claim,  rejected  from  its  origin  by  Venezuela,  your  excellency  pro- 
poses to  have  it  submitted  to  arbitration,  the  President,  desirous  of  exhausting  all  ell'orts  in 
behalf  of  the  desired  good  harmony  between  both  countries,  has  directed  mo  lo  state  to  your 
excellency  that  he  is  willing  to  accept  such  in  principle,  providing  the  umpire  cho.sen  be 
.selected  from  the  Presidents  of  the  Latin-American  Republics;  that  the  (|uestion  to  be 
decided  be  "if  this  is  the  case  provided  for  in  article  5  of  the  French-\'eiiezuelan  convention 
of  November  26,  1885;"  and  that  in  case  Venezuela  should  he  condemned  to  jxtij  any  ¡ndem- 
nification,  in  view  of  the  legal  proofs  adduced  in  favor  of  the  claimant,  such  agreement  to  he 
submitted  to  the  National  Congress  as  provided  by  law,  such  indemnity  to  be  paid  in  3  per 
cent  bonds  of  the  diplomatic  debt. 

M.  Blanchard  de  Farges  to  M.  Marco  Antonio  Saluzzo,  miuist(M- 
of  foreign  relations,  note  of  May  20,  1890: 

I  have  the  honor  to  acknowledge  receipt  of  your  note  dated  on  the  14th  instant  in  reply  tci 
the  one  I  delivered  to  your  excellency  on  the  1st,  regarding  Fabiani's  claim.     *     *     * 

As  regards  the  second  part  of  the  communication  1  now  have  the  pleasure  to  answer,  I 
notice  with  pleasure  that  the  Venezuelan  Government  does  not  further  insist  upon  the  con- 
dition that  the  election  of  the  umpire  to  be  ap|)ointed  could  not  Ui  made  but  in  the  poisson  of 
the  President  of  t)ne  of  the  Latin-American  Republics. 


ADDITIONAL    OPINION    OF    VENEZUELAN    COMMISSIONER         101 

In  the  matter  of  your  refusal  to  agree  in  flie  condition  wiiicli  my  (íovernnient  now  pro- 
poses through  me  asking  tJinf  the  umpire's  numrd  shall  deal  onhj  irilh  the  amount  ofllic  indem- 
nity to  he  fired  for  M .  Fahiani,  I  can  not  hut  earnestly  deplore  tliat  you  do  not  tliitik  you  can 
grant  us  this  point,  and  that  you  should  permit  tliat  in  this  manner  tliere  shoidd  Im-  per- 
petuated between  tlie  two  countries  an  element  of  dissension  to  the  obliteration  of  which  I 
am  satisfied  I  have  done  everytliing  in  my  power. 

Dr.  Modesto  [Trbanoja,  luinistor  of  Venezuela  in  Paris,  to  the  min- 
ister of  foreign  relations  of  Venezuela,  note  of  Jul}'  22,  1890: 

Consequently,  for  greater  clarity  and  to  prevent  that  M.  Fabiani  should  misconstrue  the 
agreement,  thus  creating  new  difTiculties,  I  told  the  minister  (M.  Ribot)  that  I  was  going  to 
inform  the  Venezuelan  (iovernment  of  the  agreement  precisely'  in  the  following  language: 

That  the  French  Government  is  willing  to  accept  </ia¿  the  question  relative  to  Ai .  Fahinni  be 
submitted  to  the  President  of  the  Federal  Council  of  Switzerland  as  arbitro  juris;  fii'st,  to 
decide  if  this  be  the  case  provided  for  in  article  5  of  the  French-Venezuelan  convention  of 
November  26, 1885;  and,  second,  should  the  umpire  decide  that  such  is  the  case  provided  for 
in  article  5,  then  the  umpire  is  to^^cr  the  sum  that  must  be  jxiid  to  M.  Fabiani  in  3  per  cent 
bonds  of  the  diplomatic  debt. 

I  have  discussed  the  matter  with  the  director  of  the  cabinet,  who  has  told  me  that,  although 
the  French  Government  agrees  in  the  substance  of  the  two  points  mentioned,  it  is  not 
desired  that  thej'  should  be  stated  in  such  terms,  because  these  would,  to  a  certain  extent, 
be  little  satisfactorj^  to  the  French  Government,  ivhich  has  decidedly  supported  M.  Fabiani's 
claim,  entérina  it  energetically  through  diplomatic  channels. 

M.  Blanchard  de  Farges  to  the  minister  of  foreign  relations  of 
Venezuela,  note  of  August  12,  1890: 

Referring  to  the  last  communications  passed  between  us  dated  May  14  and  20,  ultimo, 
relating  to  the  Fabiani  matter,  I  have  the  honor  to  submit  to  your  approval  the  inclosed 
draft  of  a  statement  which  I  have  just  received  from  the  minister  of  foreign  relations  of  the 
French  Republic  to  serve  as  a  basis  to  the  arbitration  already  agreed  upon  "in  principle" 
between  the  Venezuelan  and  French  Governments. 

In  the  event  this  draft,  which  is  entirely  in  conformity,  as  I  believe,  with  the  last  statements 
your  excellency  has  made  me  in  the  name  of  your  Government,  should,  as  I  have  reasons  to 
expect,  be  favorably  accepted  and  tha.t  forthwith  an  afireemeni  should  be  entered  definitively 
establishing  arbitration  under  the  terms  which  both  parties  should  deem  proper,  I  have  the 
pleasure  to  inform  your  excellency  that  I  am  authorized  to  withdraw  the  note  M.  St.  ChafTray 
addressed  to  the  Caracas  cabinet  as  a  consequence  of  the  instructions  sent  him  under  date 
of  December  24,  1888. 

The  draft  mentioned  in  the  foregoing  note  is  couched  in  the  same 
language  as  paragraph  1  and  articles  1  and  2  of  the  convention  signed 
by  France  and  Venezuela  on  February  24,  1891.  See  the  draft  of 
statement  at  the  foot  of  the  note  of  M.  de  Farges. 

The  minister  of  foreign  relations  of  Venezuela  to  M.  de  Farges, 
note  of  August  14,  1890: 

I  had  the  honor  to  receive  your  excellency's  communication,  dated  day  before  yester- 
day, wherein,  in  reference  to  the  claim  ofM.  Fabiani,  a  draft  of  a  statement  which  the  Gov- 
ernment of  the  P'rench  Republic  has  transmitted  to  you  is  submitted  to  the  Government 
ot  Venezuela. 

It  is  veiy  satisfactory  to  the  President  of  the  Republic  to  learn  that  the  Government  of 
France,  as  was  to  be  expected  from  its  enlightened  views  and  good  will,  accepts  the  employ- 
ment of  arbitration  to  decide  upon  the  foundation  of  such  claim  and  has  authorized  your 
excellency  to  withdraw  the  note  of  M.  St.  ChalTray,  as  Venezuela  has  urged  as  earnestly  as 


102  FABTANl    CASE. 

was  consistent  with  its  desire  to  dear  tlie  lelations  of  lyoth  countries  of  tlie  eniharrassing 
position  created  l)v  tlie  purport  of  its  contents. 

The  Ciovernment  of  Venezuehi,  on  the  other  hand,  has  no  difiicuhy  in  subscribing  to  the 
statement  transmitted,  with  tlie  understanding,  however,  that  the  (inal  agreement  resulting 
therefrom  shall  express,  according  to  the  proposition  of  Venezuela,  that  to  fix  the  amount 
of  the  indemnity,  should  there  be  any,  the  umpire  will  rest  his  decision  on  the  legal  proofs 
of  the  damages  M .  Fahiani  claims  to  have  suffered;  that  such  payment  is  to  be  made  in  the 
3  per  cent  bonds  of  the  diplomatic  debt,  as  promised,  and  that  the  agreement  is  to  be  subject 
to  the  approval  of  the  Congress  of  Venezuela. 

Finally,  your  excellency  can  not  fail  to  admit  the  nece.s.sity  in  indemnify  M.  Fabiani, 
not  for  the  damages  he  avers  to  have  sustained  ami  vhich  he  estimates  at  an  extravagant  figure, 
but  for  such  damages  «,v  he  has  aciualhj  suffered,  the  estimation  of  which  does  not  depend 
upon  liis  word  devoid  of  all  proof.     The  i)Ui(len  of  the  proof  rests  on  him  as  the  claimant. 

As  a  complement  to  such  important  notes  which  <;ive  sufficient 
hght  on  tlie  question  of  the  agreement  for  arbitration,  showing  besides 
that  such  agreement  embodied  all  the  claims  of  M.  Fabiani  existing 
at  the  time  it  was  concluded,  as  it  did  not  have  any  other  original 
grounds  except  the  so-called  Fabiani  claim,  that  the  owner  thereof 
made  to  the  amount  of  an  extravagant  figure  which  was  reduceil  to 
about  one-tenth  by  the  award  of  the  Swiss  umpire,  I  re])r()duce  herebe- 
low  the  argument  {exposición  de  motivos)  made  by  the  French  Gov- 
ernment in  regard  to  the  claim  for  indemnification  entered  in  behalf 
of  Fabiani,  addressed  on  August  3,  ]S<S7,  })y  the  French  legation  in 
Caracas  to  the  Venezuelan  Govern ni(Mit  (Answer  of  A.  Fabiani  before 
the  Swiss  umpire,  page  4): 

It  is  the  opinion  of  the  French  Government  that  the  indemnity  must  embrace,  at  least 
in  the  first  place,  the  amount  of  the  sums,  both  principal  and  interest,  the  collection  of 
which  would  have  been  msured  by  the  execution  of  the  sentence  in  due  and  proper  time, 
besides  the  restitutions  ordered  by  the  judges,  amounting  to  about  one  million  and  three 
hundred  thousand  francs,  and,  in  the  second  place,  damages  and  interest,  the  amount  of 
which  7s  to  be  discussed,  for  the  wrongs  made  to  Fabiani  in  his  ciedit  and  m  his  business. 

As  regards  his  other  pretensions,  a  searching  investigation  and  discussion  should  deter- 
mine how  far  they  are  well  founded. 

The  foregoing  suffices  to  convince  that  the  only  and  actual  object 
of  the  arbitration  agreement  and  of  the  subse({uent  investigation  and 
sentence  was  no  other  than  the  claims  of  M.  A.  Fabiani,  existing  at 
the  time  of  the  agreement,  which  the  Government  of  \'enezuela  and 
the  Government  of  France  agreed  to  sul)mit  to  the  Berne  umpire  for 
liini  to  fix,  shotdd  he  find  Venezuela's  liability  for  the  whole  of  the 
claims  or  any  portion  thereof,  the  amount  of  the  pecuniary  indemnity. 

I  do  not  deem  it  necessary  to  further  dwell  in  this  additional 
opinion  on  points  so  clearly  and  .so  well  supported  by  evidence  on 
the  part  of  both  Ciovernnients,  that  it  is  really  inconceivable  that  M. 
Antoine  Fabiani  should  pretend,  after  due  execution  of  the  award 
made  by  the  Berne  tribunal,  by  means  of  the  payment  made  by  Vene- 
zuela of  4,346,650.07  bolivars,  since  ISOO  in  bonds  of  the  diplomatic 
ilebt,  and  its  interest  at  the  rate  fixed  of  3  per  cent  per  annum,  not  to 


ADDITIONAL    OPINION    OF    FKENCH    COMMISSIONER.  103 

be  compensate;!  for  the  (lamap:es  Avhich  in  ISOl  lie  clainiod  the  Vene- 
zuelan authorities  had  caused  him  (o  si'.ííor,  and  wliicli  since  ISSS  crave 
rise  to  the  active  diplomatic  correspondence  ])assed  Ix'tween  the  two 
Governments  and  iinally  endino;  in  the  convention  of  Fehniary  24, 
1891. 

I  close  these  statements  reaffirmin<i  in  all  its  particulars  my  o])inion 
of  May  30,  1903,  by  which  I  rejected  the  claim  entered  anew  l)y  M.  A. 
Fabiani,  ])ase(l  upon  the  same  (jroimds  originating  the  claim  for 
indemnification  which  produce  1  the  arbitration  agreement  between 
France  and  A^enezuela  in  the  year  1891. 

ADDENDUM. 

I  submit  herewith  the  English  translation  of  the  award  of  the 
President  of  the  Swiss  Confeiîeration  in  the  claims  of  A.  Fabiani,  made 
by  Dr.  Delicio  Abzueta,  sworn  interpreter  in  Venezuela,  w^hose  com- 
petency is  well  known  to  the  honorable  umi^ire.'* 

NoRTHFiELD,  Vt.,  February  6,  1905. 


ADDITIONAL  OPINION  OF  THE  FRENCH  COMMISSIONER. 

After  having  read  the  additional  memoir  presented  by  my  honor- 
able colleague,  I  can  only  maintain  the  conclusions  of  the  prior 
memoir,  which  sums  u])  the  proper  conclusions  of  the  claimant  in  that 
which  concerns  the  ])loa  of  the  res  judieafa.  They  are  based  upon 
this  precise  declaration  of  the  arbitrator  of  Berne,  of  which  my  col- 
league presents  an  exact  translation  : 

In  return  Vene7Aiola  docs  not  incur  any  rcsponsihility  acconiing  to  the  compromise 
(agreement)  on  account  of  facts  strange  to  the  judicial  authorities  of  tlio  respondent  State. 
The  claims  that  the  petition  bases  on  faitfi  du  prince,  wh\c\\  are  eitiier  changes  of  legislation 
or  arbitrary  acts  of  the  executive  povvei-,  are  absolutely  subtracted  from  the  decision  of 
the  arbitrator,  who  eliminates  from  the  procedure  all  the  allegations  and  means  of  proofs 
relating  thereto  as  long  as  he  can  not  reserve  them  to  establish  other  concluding  and  con- 
nected facts  relating  to  the  denials  of  justice. 

I  think  I  ought  to  formulate,  however,  some  observations  which  are 
suggested  to  me  by  the  considerations  set  forth  in  this  additional 
memoir. 

In  the  first  place,  Doctor  Paul  supports  himself  upon  the  text  of  the 
convention  of  the  24th  of  February,  1891,  which  is  the  agreement  of 
arbitration,  and  upon  the  exchange  of  diplomatic  corres])ondence 
which  preceded  this,  in  order  to  demonstrate  that  the  intention  of  the 
two  Governments  was  really  to  determine  definitely  all  the  claims  of 
M.  Fabiani  against  Venezuela.  T  do  not  deny  this.  I  even  add  that 
the  French  Government,  faithful  to  the  spirit  which  had  inspired  the 
negotiations,  did  not  cease  to  maintain  this  interpretation  of  the  agree- 


"A  copy  of  the  original  text  of  the  award  appears  on  pp.  1)7  to  1S4,  inclusive,  post. 


104  FABTANT    CARE. 

ment  in  the  course  of  the  discussions  which  were  engaged  in  before  the 
Swiss  arbitrator.  It  was,  to  the  contrary,  the  representative  of  the 
Venezuelan  Government  at  Berne  who,  hoping  to  find  in  the  terms  of 
the  convention,  unfortunately  ambiguous,  the  possibility  for  Vene- 
zuela eluding  a  part  of  her  responsibilities,  combatted  this  broad  inter- 
pretation in  several  instances,  and  substituted  for  it  a  restrictive  inter- 
pretation. In  fact,  while  the  conclusions  of  M.  Fabiani,  supported  by 
the  representative  of  the  French  Government — conclusions  having  in 
mind  the  denials  of  justice  of  the  Venezuelan  magistrates  and,  above 
all,  the  arbitrary  acts  {faits  du  prince)  and  the  denials  of  justice 
imputable  to  the  Federal  executive — comprehended  all  the  losses  and 
all  the  injuries  which  had  been  caused  him  b}^  the  political,  adminis- 
trative, and  judicial  powers  of  Venezuela,  the  cabinet  of  Caracas  in  its 
"defense"  presented  a  plea  tending  to  restrict  the  sense  and  scope  of 
the  agreement,  and  develop  this  plea  in  bar  on  pages  1,  2,  3,  4,  5,  17, 
86,  85,  101,  and  102.  Also  to  the  precise  conclusions  of  the  réplique 
of  M.  Fabiani  on  the  faits  du  prince  the  cabinet  of  Caracas  opposed 
anew  its  plea  in  its  rejoinder. 

It  is  absurd  and  monstrous,  from  a  judicial  point  of  view,  to  maintain  that  tlic  party 
signatory  of  an  agreement,  or  one  of  them,  have  had  in  view  to  settle  a  question  outside  of 
the  agreement.  The  arbitrator  can  examine  and  retain  only  that  which  forms  the  object 
of  the  agreement. 

Further  : 

As  long  as  the  signers  of  the  agreement  have  not  given  to  this  accord  a  more  extended 
scope,  the  only  denial  of  justice  that  the  arbitrator  ought  to  examine  is  that  which  th.e 
cabinet  at  Paris  says  was  committed  after  the  Gth  of  June,  1882,  mentioned  in  article  I  of 
the  protocol.  Every  other  question  is  foreign  to  the  agreement,  and  it  can  have  no  discus- 
sion upon  tlic  point  of  the  departure  of  the  litigation  submitted  to  arbitration. 

Can  he  who  interpreted  the  agreement  thus  now  pretend  that  all 
the  claims  of  M.  Fabiani  have  been  definitely  settled,  seeing  that  it  is 
precisely  this  restrictive  interpretation  which  the  arbitrator  of  Berne 
adopted?  Consequently  M.  Lachenal  has  declared  briefly  in  the  cpio- 
tation  cited  above,  that  he  is  incompetent  according  to  the  agreement 
to  judge  all  the  points  which  M.  Fabiani  submits  to-day  to  the  exami- 
nation of  this  commission.  The  French  Government  had  only  to  sub- 
mit, since  the  sentence  of  the  sovereign  arbitrator,  although  one  might 
consider  it  as  not  having  been  inspired  by  the  spirit  which  had  pre- 
sided over  the  diplomatic  negotiations,  coidd  not,  however,  be  attacked 
as  contrary  to  the  letter  of  the  ])rotocol.  But  in  execution  of  the  arbi- 
tral award  itself,  M.  Fabiani  conserved  the  faculty  of  representing  the 
leading  points  thus  laid  aside  for  want  of  jurisdiction,  and  not  adjudi- 
cated before  every  new  court  of  arbitration  instituted  by  a  protocol 
"more  extended,"  to  use  the  term  employed  by  the  cabinet  of  Caracas 
itself.  This  protocol  with  a  more  extended  .scope  is  exactly  the  j>ro- 
tocol  of  the  19th  of  February,   1902,  of  which  M.  Fabiani  has  been 


ADDITIONAL    OPINION"    OF    FRENCH    COMMISSIONER.  105 

obliged,  in  the  absence  of  diplomatic  relations  between  France  and 
Venezuela,  to  await  the  signing  in  order  to  present  his  new  claim. 

In  the  second  place,  Doctor  Paúl  has  thought  ho  ought,  in  order  to 
make  plain  the  sense  of  the  protocol  of  the  24th  of  February,  1S91,  to 
present  the  diplomatic  correspondence  exchanged  before  the  signing 
by  the  two  Governments.  T  receive  a  double  impression  from  the 
reading  of  these  documents:  First,  I  should  be  much  astonished  to 
judge  them  by  the  interpretation  which  he  has  given  to  the  protocol, 
that  M.  Lachenal  knew  about  this  correspondence  which  did  not  form 
a  part  of  the  dossier,  since  I  had  not  read  it  myself,  then  I  state  that 
the  only  necessity  of  recourse  to  this  correspondence,  to  make  plain  the 
text  of  the  compromise,  determines  clearly  that  this  text  was  not  suffi- 
ciently plain,  and  that  from  its  aml)iguous  terms  one  could  reasonably 
draw  two  different  interpretations.  I  note,  besides,  anew  that  it  is 
the  Venezuelan  Government  which  has  not  remained  faithful  to  the 
spirit  which  presided  over  the  negotiation,  and  that  upon  this  ])oint  it 
received  an  advantage  with  the  Swiss  arbitrator.  The  same  Govern- 
ment is  desirous  of  pushing  aside  now  the  natural  consequences  of  tliis 
restrictive  interpretation  of  the  protocol. 

In  the  third  place,  my  honorable  colleague  concluded  with  a  quota- 
tion from  the  sentence  of  arbitration  that,  concerning  the  "exaggera- 
tion of  the  claims  formulated,"  all  the  claims  of  M.  Fabiani  outside 
the  main  points  recognized  as  admitting  of  indemnities  have  l)een 
definitely  rejected  by  M.  Lachenal.  It  suffices  to  read  this  phrase  in 
order  to  notice  that  it  concerns  only  the  expenses  of  the  proceeding. 
One  could  not  rest  himself  upon  an  incidental  expression,  the  sole 
end  of  which  is  to  explain  that  useless  expenses  have  been  engaged  in 
by  demands  arising  from  the  framework  of  the  protocol  to  try  to 
reveal  in  the  mind  of  the  arbitrator  intentions  contrary  to  those  which 
he  has  clearly  expressed  in  the  preamble  of  his  award.  Finally, 
Doctor  Paúl  thinks  to  find  a  last  argument  against  the  demand  of  M. 
Fabiani  in  the  text  of  a  letter  written  the  3d  of  August,  1887,  three 
years  and  a  half  before  the  signing  of  the  protocol  by  the  legation  of 
France  at  the  ministry  of  foreign  affairs  of  Venezuela.  M.  Fabiani  has 
addressed  to  me  on  this  subject  a  note,  herewith  attached,  which  I 
received  at  New  York  the  30th  of  last  January,  the  conclusions  of 
which  I  approve,  and  which  I  beg  the  umpire  to  kindly  take  into  con- 
sideration. " 

The  affair  Fabiani,  such  as  it  now  exists,  rests  entirely  u|)on  arbitrary 
acts,  denials  of  justit  e,  and  the  fraudulent  resolutions  of  the  executive 
power  of  Venezuela  which  have  caused  injury  to  the  plaintiff  or  created 
by  the  complete  destruction  of  his  only  lien  insurmountable  obstacles 
to  the  collection  of  his  enormous  del)ts.  The  Swiss  arbitrator,  inter- 
preting the  convention  of  arbitration  of  February  24,  1891 ,  has  limited 

o  Exhibit  to  memoir  of  the  French  commissioner. — IjOttcr  from  M.  Fabiani. 


106  FABiANi  past:. 

his  jurisdiction  to  the  denials  of  justice  imputable  to  the  judicial 
authorities  of  Venezuela  on  account  of  the  nonexecution  by  said  au- 
thorities of  the  award  rendered  at  Marseilles  December  1.5, 18S0.  He 
has  conseiiuently  eliminated  from  the  pnxedure  as  bein*;  outside  the 
protocol  and  he  has  not  admitted  proof  of  the  arbitrary  faits  du 
prince,  as  also  all  the  acts  foreio^n  to  the  inexécution  and  to  the  effects 
of  the  inexécution  of  the  sentence  before  mentioned,  acts  and  deeds 
which  the  claimant  government  had  considered  as  coming  within 
the  terms  of  the  protocol  above  (  ited.  This  decision  of  the  arbi- 
trator, rendered  (  ontrary  to  the  conclusions  of  the  French  Govern- 
ment and  conformable  to  the  conclusions  of  the  United  States  of 
A\>nc7Aiela,  is  of  a  startling  clearness  as  to  everything  leading  to  the 
determination  of  the  object  of  the  litigation  and  conse(juently  of  the 
object  of  the  judgment.  We  have  besides  been  able  to  observe  the 
precautions  taken  by  the  judge  in  order  to  anticipate  every  e<|uivoca- 
tion  and  to  reserve  the  rights  of  the  claimant  ])arty  for  all  the  matters 
and  points  subtracted  from  his  cognizance  by  his  interpretation  of  the 
terms  of  the  protocol.  The  conclusions  of  Fabiani  upon  the  plea  of 
res  judicata  have  su])erabundantly  demonstrated  that  these  matters 
and  points,  founded  upon  facts  foreign  to  the  judicial  authorities  of 
the  respondent  state  and  to  the  nonexecution  by  the  said  authorities 
of  the  arbitral  award  of  Marseilles,  form  the  only  object  of  the  present 
litigation,  and  that  they  all  refer  to  arhïtrsiry  faits  du  prince  and  to  tlie 
losses  and  injuries  which  have  been  the  c  onsef|uen(e.  But  in  the  suj)- 
port  of  liis  restrictive  interpretation  of  the  agreement  the  Swi.ss  arbi- 
trator makes  mention  of  a  note  from  the  French  legation  of  August  .3, 
18S7,  cited  by  the  respondent  state,  anl  that  he  has  v.onsidered,  right 
or  wrong,  as  being  able  to  give  the  measure  of  the  points  included  by 
the  protocol  of  1891,  although  this  may  be  anterior  to  this  protocol  by 
three  and  a  half  years.  But  this  note  of  1887,  in  reserving  the  .surplus 
of  the  claims  of  Fabiani,  would  suilice  to  have  the  exception  of  the 
plea  res  judicata  rejected  if  the  decisive  conclusions  of  the  j)laintitr 
could  allow  the  least  doubt  in  this  regard  to  .subsist.  In  fa;  t,  not  oidy 
has  the  Swi.ss  arbitrator  abstained  from  j)assing  u})on  the  surphis 
reserved  by  the  note  of  the  3d  of  August,  1887,  and  of  which  Fabiani, 
who  attributed  to  the  agreement  of  1891  a  much  larger  s.  ope,  had 
made  the  principal  o])je(t  of  his  memoir,  but  he  has  expre.ssly  elimi- 
nated it  from  the  procedure  and  not  oil'ered  ¡)ro<)f,  for  reason  that  the 
said  agreement  had  submitted  to  arbitration  oidy  th(>  denials  of  justice 
imputable  to  the  judicial  authorities  of  \'(Miczu(>la  and  the  nonexecu- 
tion by  these  authorities  of  tlic  arbitral  sentcMicc  of  Marseilles. 

To  appreciate  all  the  value  of  the  reserves  (ontained  in  the  note  of 
the  French  legation  of  August  3,  1887,  it  is  suITk  lent  to  notice  that 
these  reserves  concern  \]w  faits  du  prince  and  that  at  this  time  tlu» 
President  of  Venezuclii  was  still  Oen.  riuzínáti  Blanco,  tlu^  nvspon.sible 


ADDITIONAL    OPINION    OF    FRENCH    COMMISSIONER.  107 

author  of  the  ruin  of  Fabiani.  If  we  add  that  his  minister  of  foreign 
affairs  was  the  too  celebrated  Diep:o  Bautista  Urbaneja,  the  advocate 
and  accomplice  of  the  adversaries  of  tlie  jilaintifT,  we  sliall  understand 
that,  in  taking  care,  in  view  of  an  amial)le  agreement,  to  indicate  the 
ensemble  of  the  credits  of  Fabiani  against  the  Roncayolos,  the  note  of 
the  3d  of  August,  1S87,  may  have  correctly  reserved  in  the  following 
terms  the  rights  of  the  plaintili: 

As  for  the  surplus  of  liisclaiuis  (wliicli  the  (lictamoii  translnlod  thus  :  exceso  de  proten- 
siones, p.  106)  a  serious  and  analytical  examinât  ion  will  alone  determine  just  on  what  points 
they  arc  founded. 

What  were  the  claims?  Here  is  the  reply  of  Fabiani  in  his  réplique. 
The  Venezuelan  arbitrator  having  omitted  in  his  mutilated  itation 
the  essential  passages  of  the  said  response,  one  may  judge  it  useful  to 
reproduce  them  as  a  whole,  italicizing  that  which  has  been  cut  out — 
that  is  to  say,  almost  all: 

What  are  these  claims  of  Fabiani?  The  affair  of  the  towage  and  that  of  the  railroad. 
What  was  the  cause  of  such  a  reserved  formula?  Why  this  reticence?  One  will  (ind  llie 
explanation  of  it  in  the  last  paragraph  of  page  527  of  our  memoir.  The  affairs  of  the  tovxige 
and  that  of  the  railroad  {that  if)  to  say,  all  the  arbitrary  acts — the  denials  of  justice  and  farts 
du  prince  which  these  two  affairs  have  created)  could  not  even  be  indicated,  Guzman  Blanco 
ruling.  But  our  Government,  anxious  to  reconcile  the  duty  of  protecting  its  nationals,  with 
its  eager  desire  to  avoid  a  new  rupture  and  grave  complication,  hcul  forbidden,  with  our  loyal 
assent,  making  allusion  to  denials  of  justice  imputable  to  the  chief  of  the  executive  power, 
reserving  to  us  the  free  exercise  of  our  rights  if  the  propositions  of  an  amiable  settlement  v:ere 
repulsed.     These  reserves  result  from  the  paragraph  quoted  as  to  the  surplus  of  the  claims,  etc. 

All  the  passage  italicized  has  been  omitted  in  the  dictamen  of  the 
Venezuelan  arbitrator.  This  suppression  has  had  for  a  result  to  con- 
ceal that  it  was  a  question  of  arbitrary  acts  or  faits  du  prince  and  to 
allow  to  be  ignored  the  serious  motive,  which,  for  facilitating  an  amiable 
settlement,  had  caused  in  1887  the  reserving  of  the  surplus,  of  which  the 
Swiss  arbitrator  has  refused  to  take  note,  because  he  was  deeply  pos- 
sessed with  the  idea  that  the  protocol  of  1891  was  affected  by  the  same 
reservation. 

These  elisions  once  indulged  in  the  dictamen  is  restrained  to  repro- 
duce the  phrase  which  begins  thus  : 

There  is  for  the  object  of  the  litigation,  etc. 

It  is  without  any  practical  utility  in  the  present  affair,  since,  like  all 
declarations  relative  to  the  losses  and  injuries  of  Fabiani,  it  expressed 
the  opinion  of  the  demandant  Government  on  the  sense  and  extent  of 
the  words  denials  of  justice  inserted  in  the  agreement  of  February  24, 
1891.  But  one  is  not  ignorant  that,  upon  the  formal  reply  of  Vene- 
zuela, these  conclusions  of  the  demand  were  put  aside  by  the  arbitrator 
of  Berne,  who,  after  having  determined  the  object  of  the  litigation  and 
hxed  the  matter  really  submitted  to  his  jurisdiction  by  the  agreement 
cited,  has  eliminated  from  the  procedure  and  has  not  admitted  proof 


;08  FABIANT    CASE. 

of  as  being  outside  the  terms  of  the  protocol  just  this  surplus  of  claims 
of  Fahiani,  which  comprehended  the  arbitrary  acts  and  the  denials  of 
justice  or  ''faits  du  prince"  upon  which  the  present  examination  is 
founded;  that  is  to  say,  all  the  facts  foreign  to  the  judicial  authorities 
of  Venezuela  and  to  the  nonexecution  b}-  the  said  authorities  of  the 
arbitral  award  of  Marseilles.  The  State  of  Venezuela  had  itself  twice 
proclaimed  in  its  answer  that  these  main  points  of  the  claim  did  not 
constitute  the  matter  of  the  litigation  remitted  to  the  decision  of  the 
Swiss  arbitrator,  and  in  its  rejoinder,  that  these  same  points  foreign  to 
the  protocol,  might  form  the  object  of  a  later  examination,  whenever 
the  two  Governments  would  sign  a  more  extended  protocol,  which  was 
realized  on  February  19,  1902.  It  is  this  reasoning  which  has  con- 
vinced the  arbitrator  of  Berne  and  which  has  led  him  to  pronounce 
upon  the  above-mentioned  points  a  declaration  of  want  of  jurisdiction, 
by  which  the  rights  now  under  discussion  were  safeguarded.  It  is  not 
without  interest  to  fill  in  another  gap  in  the  dictamen  and  to  call, 
respectfully,  the  attention  of  the  arbitrators  to  the  last  paragraph  of 
page  527  of  the  memoir,  which  the  Venezuelan  arbitrator  has  not 
deigned  to  reproduce,  although  page  5  of  the  replique  has  signalized  it 
as  being  necessary  to  furnish  explanation  of  the  reserve  made,  as  to  the 
surplus  of  the  claims  of  Fabiani.     Here  is  the  paragraph: 

Our  exposé  has  made  known  our  complaints;  the  questions  aheath'  so  prravp  and  so  clear 
of  denials  of  justice,  of  the  refusal  of  execution  of  award,  of  the  violent  acts  of  agents  of  all 
classes,  turn  pale  beside  the  acts,  perfidious,  malevolent,  interested  and  contrary  to  all  the 
principles  of  international  law,  of  which  we  make  with  good  right  the  whole  responsibility  to 
rest  upon  Gen.  Guzman  Blanco,  President  of  the  United  States  of  Venezuela.  These  numer- 
ous successive  acts  which  did  not  spring  from  civil  or  penal  justice  and  w'hich  for  this  same 
reason  remain  without  the  provisions  of  article  !\oi  the  convention  of  IKS-ô — these  acts  which 
constitute  i)old  denials  of  justice  ought  we  to  pass  them  by  in  silence  at  the  risk  of  compro- 
mising the  sacred  interests  which  we  have  the  mission  of  .safeguarding Í  Who  would  have 
dared  to  counsel  us  thus?  It  was  then  necessary  to  speak,  to  .set  forth  the  facts,  to  make 
them  preci.se,  above  all  to  characterize  them,  to  demonstrate  the  intention  to  injure.  It 
was  necessary  to  put  in  relief  the  interested  passion,  the  blind  hatred,  the  fmls  du  prince, 
the  culpable  reticence  which  ought,  following  the  theory  and  practice  of  the  retaliation  of 
faults  caused  us,  to  allow  some  vindictive  interest.  Very  well!  But  here  one  sees  the 
Venezuelan  delegate  jump;  wo  see  him  compelled  to  squander  the  proofs  of  his  loyalty 
for  the  name  of  the  chief  of  state  is  Guzman  Blanco,  and  his  minister  of  foreign  affairs, 
specially  cliosen  ad  hoc,  is  no  other  than  his  famous  uncle  Diego  Bautista  lîrbaneja! 

This  passage  of  the  exposé  explains  clearly  the  surplus  of  claims  of 
Fabiani.  It  has  been  explained  since  that  the  dictamen  has  pa.ssed  it 
over  in  silence,  because  this  siu'pius  relative  to  the  faits  du  prince  was 
formally  eliminated  from  the  procedure  by  the  Swiss  arbitrator  as 
foreign  to  the  judicial  autiiorities  of  the  respondent  State,  and  that  the 
ensemble  of  the  sentence  of  Berne,  b}'  the  precautions  taken  in  orí  Km- 
to  leave  no  doubt  as  to  what  was  really  judged,  demonstrates  thai  the 
said  sentence  has  considered  this  surj)his  reserved  as  ca|)abl{'  of  form- 
ing and  bound  to  form  the  object  of  a  new  litigation.     The  suri)his  of 


ADDITIONAL    OPINION    OF    FRENCH    COMMISSIONER.  109 

the  claims  of  Fabiani,  as  page  527  of  the  iiienioir  cleiiionstrates,  has 
reference  to  the  faits  du  priîice,  and,  more  particularly,  to  the  arbitrary 
acts  which  have  so  sadly  marked  the  two  grave  affairs  of  the  towage 
and  the  railroad.  This  surplus  then  included  all  the  arbitrary  acts,  all 
the  denials  of  justice,  and  the  fTaudulent  resolutions  "du  prince^' — 
that  is  to  say,  all  that  comprises  the  object  of  the  present  examination. 
Pages  49  to  67  of  the  conclusions  of  the  plaintili  j)r()ve  this  beyond 
perad venture.  This  long  series  of  civil  wrongs,  intentionally  injurious, 
has  created  insurmountable  obstacles  and  of  the  nature  of  force 
majeure  to  the  recovery  of  the  credits  of  Fabiani.  Independent  of  the 
arbitral  award  of  Marseilles  tliis  unhappy  work  has  been  comi)leted  by 
the  fraudulent  annihilation  of  the  strong  and  only  lien  of  the  creditor, 
and  by  the  withdrawal  of  the  service  of  the  towage,  by  this  abuse  of 
right,  veritable  act  of  reprisal  of  a  venal  and  passionate  chief  of  state 
against  a  mandate  of  justice.  These  unheard  of  and  WTongful  deeds 
call  for  a  restitution  proportionate  to  the  gravity  of  all  these  infrac- 
tions. 

In  these  conditions,  in  presence  of  the  demonstration  that  the  main 
point  of  the  demand,  eliminated  from  the  procedure  of  Berne,  as  out- 
side the  terms  of  the  protocol,  concern  the  arbitrary  acts,  the  denials  of 
justice,  lato  sensu,  or  the  faits  du  prince,  which  are  the  peculiar  object 
of  the  present  litigation;  and,  finally,  in  presence  of  the  decision  of  the 
Swiss  arbitrator,  so  clearly  ordered  to  the  manifest  end  of  preventing 
every  equivocation,  as  to  the  object  of  the  litigation  and  as  to  what  was 
really  adjudged,  one  is  led  to  recognize  once  more  that  the  plea  of  res 
judicata  is  no  less  inadmissible  than  badly  founded. 

Convinced,  moreover,  that  in  order  to  know  what  was  really  adjudged 
by  the  arbitrator  of  Berne,  it  is  necessary,  first  of  all,  to  possess  one's 
self  of  the  contestation,  such  as  the  plea  of  the  defendant  determined 
it,  confirmed  by  the  judgment,  then  to  consult  the  judgment  which  has 
sustained  the  plea,  and  which,  by  the  interpretation  of  the  proto- 
col, has  limited  the  object  of  the  litigation  and  the  jurisdiction  of  the 
judge,  following  the  conclusions  of  the  respondent  State  (denial  of 
justice,  committed  since  the  6th  of  June,  1882,  by  the  judicial  authori- 
ties of  Venezuela)  Fabiani  can  in  all  confidence  rely  upon  his  conclu- 
sions of  the  24th  of  June,  1904,  which  have  demonstrated  indubitably 
that  the  object  of  the  litigation  determined  by  the  arbitrator,  con- 
formably to  the  conclusions  of  the  defendant  and  contrary  to  the 
conclusions  of  the  prosecutor,  and  the  decisions  so  clear  and  so  precise 
of  the  Berne  award,  touching  the  matter  of  litigation  thus  determined, 
have  refuted,  in  advance,  for  all  and  for  each  of  the  leailing  points  of  the 
present  contest  the  plea  of  res  judicata  developed  in  the  dictamen  of 
the  Venezuelan  arbitrator. 

The  arbitrator  of  Berne  has  passed  judgment  up'on  the  acts  imput- 
able to  the  judicial  authorities  of  Venezuela  in  the  course  of  the  pro- 


lio  FABIANI    CAS?:. 

cedure  of  execution  of  tlie  arbiliul  tlecisioii  of  Marseilles,  and  upon 
these  acts  only.  It  belongs,  then,  to  the  arbitrators  to  decide  in  their 
turn  upon  the  arbitrary  acts,  the  denials  of  justice,  the  faits  du  ¡prince, 
and  upon  the  losses  and  damages  which  have  resulted  therefrom. 


OPINION  OF  THE  UMPIRE. 

The  case  of  Antoine  Fabiani  came  to  the  umpire  because  of  the 
inability  of  the  honorable  commissioners  for  France  and  \'enezu('la  to 
agree,  as  hereinafter  stated  more  in  detail. 

His  claim  had  been  presented  by  the  concerted  action  of  these  two 
Governments  to  the  arbitrament  and  award  of  the  honorable  President 
of  the  Swiss  Feileration  by  virtue  of  and  according  to  the  terms  of  a 
compromise  had  by  and  betw^een  these  hcjnorable  Governments,  which 
w^as  concluded  February  24,  1891,  and  is  of  the  language  following: 

Re  Fabiani's  claims: 

The  Government  of  the  United  States  of  Vene7Aieki  and  tiie  (jroveinment  of  the  French 
Repuhlic  have  agreed  to  submit  to  an  arbitrator  ti)e  ehiims  of  M.  Antonio  Fal)iani  against 
the  \'enezuelan  Government. 

It  will  be  the  duty  of  the  arbitrator: 

First,  to  decide  whether,  according  to  the  laws  of  V'enezuehi,  the  general  principles  of  the 
law  of  nations  and  the  convention  in  force  between  the  two  contracting  powers,  the  Vene- 
zuelan Government  is  responsible  for  the  damages  which  M.  Fabiani  says  to  have  sustained 
tlirough  denial  of  justice. 

Second,  to  fix,  in  case  such  res[)onsibility  is  recognized,  as  to  all  or  part  of  the  claims  in 
question,  the  amount  of  the  pecuniary  reparation  that  the  Venezuelan  Government  must 
deliver  to  M.  Fabiani,  and  whicli  will  be  paid  in  bonds  of  the  3  per  cent  diplomatic  del)t  of 
Venezuela. 

Tlie  two  Governments  have  agieed  to  request  the  President  of  the  .Swiss  Confederation  to 
kindly  take  charge  of  this  arbitration. 

The  present  declaration  will  be  submitted  to  the  approval  of  the  Congre.ss  of  Venezuela. 

Done  in  duplicate  at  Caracas,  the  21th  of  February,  one  thousand  eight  hundred  and 
ninety-one. 

The  "convention  in  force  between  the  two  contracting  powers" 
was  the  treaty  of  November  25,  1885,  by  and  between  these  two  Gov- 
ernments; and,  so  far  as  the  same  has  bearing  or  value  in  aid  of  the 
compromise  above  set  forth,  is  here  set  out  as  follows: 

CONVE.NTIOX. 

The  Government  of  Venezuela  and  the  Government  of  the  Frcncii  Rejiubhc,  being  desirous 
of  reestablishing  between  the  two  countries  the  friendly  relations  interrupted  sin<M>  ISSl, 
have  appointed  to  be  their  respective  plenipotentiaries  I  lie  following.': 

The  President  of  the  United  States  of  Venezuela,  Cien.  Guzman  Bhmco,  envoy  extraordi- 
nary in  Paris,  etc. 

The  President  of  the  Frencli  Kei)ulilic,  the  Count  Tristan  <!(■  .Montlioloii.  minisier  plenipo- 
tentiary of  the  second  cla.ss  in  charge  (i<l  int.  of  tiie  duties  of  the  (hreclor  of  political  affairs 
in  the  ministry  of  foreign  affairs,  etc. 

Who,  after  having  exchanged  their  respective  powers,  fouiul  in  good  mid  due  form,  have 
agreed  u{)on  the  following  articles:     *     *     * 


OPINION    OF    UMPIRE.  Ill 

Article  5tii. 

In  order  t(»  avoid  in  I'utuie  ovorything  that  might  interlVre  with  their  frieniily  n-lutious 
the  high  contracting  parties  agree  that  their  diplomatic  representatives  will  not  interfere 
in  the  matter  of  claims  or  complaints  of  private  individuals  or  on  alTairs  cognizable  l)y  tlie 
civil  or  penal  justice,  according  to  the  local  laws,  unless  the  question  is  a  denial  of  justice  or 
judicial  delays  contrary  to  use  or  to  law,  the  noncompliance  with  a  definitive  sentence,  or, 
finally,  cases  in  which  in  spite  of  the  exliaustion  of  legal  remedies  there  is  an  evident  infrac- 
tion of  the  treaties  or  of  the  rules  of  the  law  of  nations. 

The  claims  presented  before  the  honorable  arbitrat(H-  of  Berne  on 
behalf  of  M.  Fabiani  ay;gre<!;ateil  46,994,563. 17  francs,  extended  over 
the  years  from  1878  to  1893,  were  assembled  under  the  general  term  of 
denial  of  justice  and  included  such  as  were  imputable  to  the  judicial 
authorities  of  Venezuela,  its  administrative  authorities,  ami  to  dam- 
ages suflered  by  him  through  the  fault  of  its  public  powers,  claiming 
for  him  both  the  direct  and  indirect  damages  under  each  head. 

December  30,  1896,  the  award  was  made  for  4,346,656.51  francs 
with  interest  at  the  rate  of  5  per  cent  per  annum  from  that  date.  The 
honorable  arbitrator  arrives  at  this  sum  in  tlie  manner  hereinafter  set 
forth. 

The  decision  of  the  honorable  arbitrator,  together  with  his  reasons 
therefor,  was  rendered  in  \vTÍting,  which  award  reciting  the  essential 
facts,  as  well  as  the  reasons  of  the  honora})le  arbitrator,  appears  on 
pages  4748-4915,  volume  5,  Moore's  History  and  Digest  of  Interna- 
tional Arbitration.  " 

The  sum  of  42,647,906.66  francs  represents  that  part  of  the  total 
claim  of  ^i.  Fabiani  which  was  not  allowed  b}'  the  honorable  arbitrator 
ofJBerne,  and  which  was  denied  for  the  reasons  given  in  his  award. 

It  is  claimed  by  M.  Fabiani  before  this  commission  that  of  the  sums 
denied  allowance  by  the  honorable  arbitrator  of  Berne  there  are  cer- 
tain portions  so  disposed  of  by  him  as  to  be  still  in  force  against  the 
respondent  Government  under  the  general  terms  of  the  protocol  con- 
stituting this  commission,  aggregating  9,509,728.30  francs. 

The  reasons  given  by  Fabiani  before  this  present  commission  for 
ascribing  present  vitality  to  the  claims  now  before  this  commission 
are,  in  substance,  as  follows: 

The  decision  of  the  arbitral  statement  of  Berne  is,  in  effect,  that  all  the  chief  points  of  the 
actual  demands  and  tiie  aibitrary  acts  "faits  du  prince"  have  lieen  expressly  formally 
eliminated  by  the  Swiss  arbitrator  as  subtracted  from  his  decision  by  his  interpretation  of 
the  terms  of  the  protocol  passed  between  the  Government  of  the  French  Repviblic  and 
the  Government  of  A'enezuela  ; 

That  the  interpretation  of  the  treaty  of  February  24,  1S91,  given  i)y  tlie  said  arl)itratt)r, 
has  placed  the  limit  of  tht-  questions  which  the  judge  had  the  power  to  resolve,  upon  which 
he  was  authorized  to  ¿ecide,  and  which  alone  ought  to  make  and  which  has  made  the  object 
of  his  judgment; 

That  by  the  formal  decision  which  has  eliminated  the  cause  and  the  object  of  the  actual 
demand  as  not  being  included  in  the  matter  submitted  to  his  jurisdiction  the  arbitrator  [of 


«Post  pp.  147  to  184,  inclusive. 


112  FABIANI    CASE. 

Berne]  has  recognized  that  he  liad  not  the  right  tu  pass  judgment  upon  the  ^' faits  du  prince" 
and  upon  all  the  points  by  him  eliminated  from  the  procedure  as  not  included  in  the  terms  of 
the  protocol; 

That  in  declaring  them  subtracted  from  his  decision  according  to  the  protocol  the  arbi- 
trator has  passed  judgment  upon  his  own  jurisdiction  and  has  determined  its  limit; 

That  the  doctrine  and  jurispmdencc  arc  fur  a  lung  lime  imaiiimous  upon  this  incontestable 
principle  that  a  dcdaratiun  uf  incumpetency  can  never  produce  the  effect  of  res  judicata  upon 
the  foundation  of  the  law; 

That  the  "faits  du  prince"  and  all  the  points  of  the  present  instance  [liave]  been  expressly 
eliminated  from  the  procedure  by  the  decision  of  the  arbitrator  of  Berne,  because  the}-  were 
not  included  by  the  terms  of  the  protocol,  and  consequently  were  subtracted  from  its 
competence;     *     *     * 

That  he  has  eliminated  it  as  not  making  a  part  of  the  matter  remitted  to  his  decision,  and 
that  he  would  not  have  been  able  to  retain  it  without  violating  his  own  interpretation  of  the 
treaty  of  February  24,  1891;  *  *  *  fhe  most  sci-upulous  examination  of  the  arbitral 
decision  of  December  31,  1896,  determines  that  the  arbitrator  has  strictly  conformed  to  his 
interpretation  of  the  p:otocol,  and  that  he  has  not  passed  judgment  byway  of  the  declara- 
tion of  right  and  responsibility  upon  any  of  the  matters  eliminated  by  him  as  subtracted 
from  his  right  to  judge  by  the  tenns  of  the  protocol; 

That  consequentl}"^  these  matters  not  having  been,  and  not  having  been  able  to  be,  the  object 
of  a  decision  upon  the  bases  of  law  one  could  not  pretend  that 

they  are 

res  judicata; 

That  to  be  convinced  of  it  it  is  sufficient  to  refer  to  the  procedure  liefore  the  President  of 
the  Swiss  Confederation  to  the  plea  proposed  by  the  defendant  party  against  the  actual 
demand  as  arises  from  the  terms  of  the  protocol,  then  to  the  former  and  reiterated  decision 
which  the  arbitrator  [of  Berne]  had  rendered  in  giving  to  the  protocol  of  Febmarv'  24, 
1891,  the  sense  claimed  by  the  United  States  of  Venezuela  and  in  eliminating  from  the  pro- 
cedure as  subtracted  from  his  decision — that  is  to  say,  from  his  jurisdiction — the  "faits  du 
prince"  and  all  the  points  foreign  to  the  inexécution  and  of  the  ell'ects  of  the  inexécution  by 
the  tribunals  of  Venezuela  of  the  arbitral  sentence  of  Mai-seilles  of  December  15,  1880 — that 
is  to  say,  precisely  all  the  points  upon  which  the  arbitratoi-s  authorized  by  the  treaty  of 
Febmary  19,  1902,  are  called  upon  to  decide, 

In  execution  of  the  protocol,  whose  terms  gave,  in  Fabiani's  opinion,  plenitude  of 
jurisdiction  to  the  arbitrator  [of  Berne]  and  conferred  upon  him  the  right  to  decide  upon  all 
the  denials  of  justice,  whether  they  were  imputable  to  the  judicial  authorities  or  to  the 
administrative  authorities  of  Venezuela  (these  latter  naturally  including  the  arbitrary 
acts  or  "faits  du  prince"  attributable  to  the  Federal  executive)  and  uj)on  all  the  danuiges 
which  Fabiani  says  to  have  suffered  through  the  fault  of  the  public  powei-s  of  this  country, 
the  French  Government  charges  the  claimant  to  present  the  demand  before  the  President  of 
the  Swiss  (Confederation. 

Fabiani  established  the  general  table  of  losses  and  prejudices  of  damages  and  interests,  the 
responsibility  of  which  he  imputed  to  the  public  powers  of  Venezuela;  but  the  defendant 
party,  for  reasons  easy  to  suspect,  preferred  a  solution  which  would  lea\e  the  parties  always 
divided  by  the  difference  which  tlie  French  Kepublic  had  proposed  to  avoid  in  a  complete 
fashion. 

Fabiani,  as  r(^sults  from  the  ensemble  of  hisexpo.sé  before  the  arbitratoi'of  Berne,  had  always 
considered  the  arbitrary  acts  and  the  denials  of  justice  "/«iV.s'  du  ;>rí;i(T"  imputabh»  tu  the 
administrative  autlK)rities  as  tlu^  principal  cause  of  his  misfortunes  in  Wnezuela. 

Of  the  505  j)u<ies  of  the  said  expt)86  of  facts,  more  tlian  two-thirds 
treated  of  the  direct  interference  of  tlie  Federal  executive  in  a  conlhct 
between  foreigners,  notably  the  following  pages:  41  to  50,  52  to  55, 


OPINION    OF    UMPIRE.  113 

57  to  60,  69,  92  to  98,  1ÜÜ  to  103,  108  to  115,  123  to  124,  129,  131  to 
139,  158  to  165,  174  to  178,  181,  183,  199  to  204,  206,  207,  242,  255, 
259,  261  to  267,  272  to  274,  276,  284  to  290,  294,  297,  298,  300,  304, 
305,  312  to  320. 
It  is  Fabiani's — 

conviction  that  the  terra  '"denial  «f  justice,"  employed  in  the  protocol  included  all  denials 
of  justice,  those  of  the  judicial  authorities,  and,  above  all,  those  imputable  to  the  admin- 
istrative and  political  authorities  of  Venezuela. 

The  Swiss  arbitrator — 

has  given  his  interpretation  of  the  terms  of  the  protocol,  determined  exactly  the  object 
of  the  difference  submitted  to  arbitration,  and  has  expressly  eliminated  from  the  procedure, 
as  subtracted  from  his  decision,  and  con.se<iuently  from  his  competency,  all  of  the  allega- 
tions and  means  of  proof  relative  to  claims  founded  upon  the  arbitrary  acts  of  the 
executive  powers  or  upon  the  "faits  du  prince"  and  upon  all  the  faits  foreign  to  the 
inexécution  of  the  arbitral  sentence  of  Marseilles  of  December  15,  1880. 

In  further  support  of  his  contention  that  the  claims  specified  by  him 
are  still  of  vitality  and  force  and  competent  to  be  passed  upon  by  this 
commission,  he  quotes  several  passages  from  his  expose. 

Page  542  : 

If  we  do  not  possess  the  formal  and  written  avowal  of  our  implacable  enemy,  we  have, 
aside  from  his  official  acts,  which  bring  prejudice  to  us,  the  acts,  also  official,  perfidiously 
calculated  to  strangle  us  between  two  doors,  if,  trusting  to  false  appearances  of  justice, 
we  thought  to  make  our  rights  of  value. 

The  executive  power  coming  to  the  aid  of  tlie  judicial  power  to  condemn  us  to  powerless- 
ness  by  the  aid  of  fraudulent  maneuvers,  which  resulted  in  the  spoliation  of  October  26, 
1885,  is  an  undeniable  fact  which  will  not  escape  the  scrutinizing  eye  of  the  judge. 

Page  545: 

The  ensemble  of  our  grievances  against  Venezuela  engages  the  responsibility  of  the  judges 
and  of  the  public  powers  of  this  country.  The  judges  have  been  guilty  :  they  have  surpassed 
them.selves  in  the  art  of  adapting  the  laws  to  the  annulment  of  justice;  the  public  powers 
have  been  unworthy;  in  any  civilized  country  they  would  not  have  been  able  to  escape 
chastisement;  but  in  the  long  run  we  would  have  been  able,  perhaps,  to  triumph  over 
their  venality  and  ill-will  if  we  had  not  been  forced  to  struggle  against  the  personal  and 
interested  hostilit}'  of  the  chief  of  state.  This  personal  hostilit}',  a  veritable  "fait  du 
prince,"  has  established  before  us  the  case  oí  force  majeure. 

Page  552  : 

The  acts  for  which  we  reproach  Gen.  Guzman  Blanco  are  of  the  resort  neither  of  the  civil 
justice  nor  of  penal  justice  of  his  countr^^  These  acts,  veritable  denials  of  ju.stice,  have 
been  committed  by  the  President  of  the  Republic  in  this  quality. 

The  laws  of  Venezuela,  conformable,  moreover,  to  the  general  principles  of  public  law, 
authorize  no  action  against  the  chief  of  state  save  in  one  of  the  three  cases  provided  for  by 
the  constitution.  But  if  these  acts  escape  all  civil  or  penal  jurisdiction,  this  does  not  .sig- 
nify in  any  way  that  they  engender  no  responsibility  and  that  this  responsibility  can  never 
produce  its  results.  According  to  the  law  of  nations,  there  is  a  responsibility  which  substi- 
tutes itself  for  the  personal  responsibility  of  the  chief  of  state;  it  is  that  of  the  country 
which  he  represents,  when  the  acts  of  the  executive  power  constitute  with  regard  to  a 
foreign  nation  or  its  dependents,  violations  of  the  principles  of  public  international  law. 
S.  Doc.  533,  59-1 8 


114  FABIANI    CASK. 

Pages  553  to  554  : 

But  in  our  unfortunate  alfair,  the  "faits  du  prhue,"  wliidi  have  constituted  denials  of 
justice,  are  well  established.  We  have  no  need  to  refer  to  them,  nor  even  to  group  theni, 
in  order  to  enlighten  the  conscience  of  the  arbitrator.  Our  general  exposé  relievi-s  us  from 
insisting.  All  these  facts,  taken  together  or  separately,  establish  the  direct  intervention 
of  the  chief  of  state  in  a  conflict  between  individuals  to  prepare,  to  consummate,  a  great 
injustice.  If  these  considerations,  which  we  believe  in  perfect  harmony  wit!»  the  theory 
and  practice  of  the  law  of  nations  among  civilized  countries,  are  accepted  by  the  arbitrator, 
the  iniciuity  of  the  judges,  their  denials  of  justice,  and  the  question  of  retroactivity,  rele- 
gated to  the  second  place,  will  no  longer  offer  anyithing  but  a  secondary  interest. 

We  have  furnished  all  the  proofs  of  the  malevolent  action  of  the  chief  of  state,  now  direct, 
now  indirect,  continued  for  more  than  six  years,  striking  us  in  front  and  behind,  raising 
themselves  before  us  as  an  in.surmountable  obstacle  to  paralyze  us,  when,  in  spite  of  his 
venality,  justice  was  impressed  for  continuing  his  guilty  work.  If  the  arbitrator  retains 
the  "faits  du  prince,"  as  these/ai/.v  have  had,  as  a  consequence,  a  .series  of  denials  of  justice, 
he  will  find,  in  these  evident  violations  of  the  principles  of  the  law  of  nations,  the  direct 
reply  to  the  arguments  of  the  cabinet  of  Caracas  and  the  juridical  elements  of  a  decision 
which  will  retain  the  responsibility  of  Venezuela  without  its  being  even  necessary  to  refer 
to  the  complicit}'  of  the  judicial  and  administrative  authorities  of  the  countr}\  And  we 
are  persuaded  that  this  decision,  having  reference  to  all  the  faits  .since  the  origin  of  our 
troubles,  and  retaining  ail  the  violences  of  which  we  have  been  the  object,  will  proportii)n 
the  reparation  of  the  prejudice  caused  to  the  premeditation,  to  the  gravit}-,  to  the  tenacity, 
and  to  the  extent  of  the  offense.  However,  need  we  insist  upon  the  infractions  and  upon 
the  denials  of  justice  which,  exclusive  of  the  "faits  du  prince,"  might  be  of  the  resort  of  the 
civil  or  penal  justice? 

Fabiani  follows  these  quotations  with  the  statement  that — 

these  extracts  offer  the  advantage  of  determining  the  .sense  which  he  attaches  to  the  words 
"denials  of  justice"  according  to  the  protocol,  which,  in  his  opinion,  included  not  oidy 
denials  of  justice  imputable  to  the  judicial  authorities,  but  still,  and  above  all,  denials  of  jus- 
tice imputable  to  the  Federal  executive  and  all  the  arbitrary  acts  connected.  That,  in 
effect,  if  the  plaintili  (Fabiani)  recognized,  as  he  still  recognizes,  the  right  of  the  sovereign 
appreciation  of  the  judge,  lie  counted  that  this  right  would  be  exercised  upon  the  ensemble  of 
his  demand,  and  more  especially  upon  the  arbitrary  acts  of  "faits  du  prince,"  denials  of 
justice  imputable  to  the  Federal  executive;  that  if  the  arbitrator  (of  Berne)  has  disposed  of 
them  otherwise,  if  he  has  interpreted  the  protocol  in  a  way  to  limit  and  determine  the 
object  of  the  dill'erence  submitted  to  his  deci.sion,  he  has  thereby  still  reserved  the  rights  of 
the  plaintiff  CFai)iani)  for  all  the  matters  which  he  has  declared  stranger  to  the  object  of  the 
litigation  and  which  lie  has  eliminated  from  the  procedure  as  subtracted,  etc. 

In  signalizing  the  denials  o!  just  ice  of  the  magistrat  es  of  Venezuela  in  all  that  whicli  luul  ref- 
erence to  the  inexécution  of  the  sentence  of  Marseilles,  tlie  demand  for  damage,  and  interest 
was  founded  especially  upon  the  injurious  results  of  the  arbitrary  acts  and  denials  of  jus- 
tice of  the  Federal  executive. 

In  those  conditions  it  is  tiatural  that  the  plaintili'  (l''abiaiii)  should  have  anticipated  an 
adjudication  en  bloc 

Fabiani  urges  that  the  honorable  arbitrator  of  Berne,  in  proceeding 
to  .set  forth  his  reasons  and  to  separate  the  claims  allowed  from  those 
disallowed,  has  "in  eííect"  |)roceeded  "contrarv  tt)  custom,  not  to  an 
adjudication  en  bloc,  hut  to  a  detailed  adjudication  clcai'  and  |)rccisc." 
and 

has  cvKJciil  ly  licid  to  ¡irilicipate  cxciy  equivocation,  to  cut  sliuil  all  tliuanciN.  and  to  le- 
seive  to  tlic  (leiiiaiidanl  |)aity  the  free  exercise  of  all  his  rights  foi'  all  the  iiiatlers  and  for 
all  sums  which  he  had  just  declared  subtracted  from  his  decision. 


OPINION    OF    UMPIRE.  115 

To  elucidate  the  meaning,  force,  and  ellect  of  tlie  acts  of  the  honor- 
able arbitrator  of  Berne  and  to  bring  out  more  clearly,  as  he  would  con- 
tend, the  elimination  and  subtraction  suggested,  and  to  show  that  the 
reason  therefor  is  as  claimed  l^y  Fabiani,  he  cjuotes  from  the  defense 
of  the  respondent  Government  made  before  the  honorable  President 
of  the  Swiss  Federation,  stating  that  such  defense  begins  as  follows: 

The  demandant  party  gives  itself  up  continually  from  tlie  beginning  of  its  expose  to  the 
interminalile  digressions  which  have  no  iclation  to  the  affair  under  discussion,  in  (he  diplo- 
matic discussion  maintained  by  the  cabinets  of  Caracas  and  Paris  upon  the  subject  of  the 
Fabiani  claim.  The  object  of  this  claim  and  its  points  of  departuie  have  been  detemiitied. 
The  object  is  the  denial  of  justice  alleged  by  Fal)iaMÍ  for  ttie  nonexecution,  according  to  him, 
of  the  arbitral  sentence  rendered  in  his  favor  at  Marseilles  December  15,  1SS(),  analogous  to 
the  civil  tribunal  of  the  first  instance  and  confirmed  by  the  court  of  appeal  of  Aix,  and  the 
point  of  departure  can  not  be  any  other  than  the  decree  by  which  on  the  date  of  June  6, 1882, 
the  high  Federal  court  of  Venezuela  gave  executory  force  in  the  country  to  the  sentence  of  the 
court  of  appeal  of  Aix. 

Page  4: 

That  which  is  important  to  fix  now  is  that  ail  wliich  is  anterior  to  the  decision  of  the  high 
Federal  court  of  the  date  of  June  G,  1S82,  and  the  other  digressions  which  tlic  plaintiff  has 
added  to  his  exposé,  do  not  constitute  the  matter  of  actual  litigation.     *     *     * 

Moreover,  tlie  diplomatic  discussion  having  determined  that  the  Fabiani  claim,  which  was 
about  to  be  submitted  to  arbitration,  was  the  claim  presented  and  supported  by  the  French 
Government,  and  not  the  claims  which  Fabiani  should  present  ulteriorly,  the  compromise 
between  the  two  Governments  has  for  an  end  only  the  facts  relating  to  t  he  pret(>nded  denials 
of  justice  beginning  from  1882. 

In  Fabiani's  réplique  to  the  defense  of  Venezuela,  from  which  the 
following  cjuotations  are  taken,  he  vigorously  opposed  this  claim  of 
Venezuela,  and  again  explained  the  sense  which  he  attached  to  the 
words  "denials  of  justice." 

Page  62  : 

Our  voluminous  memoir  is  occupied  principally  with  Mr.  Guzman  Blanco,  whose  name 
finds  itself  repeated  on  each  page  several  times.  The  denials  of  justice,  the  violences, 
excesses,  by  us  denounced  in  the  memoir,  are  attributed  to  this  cause  almost  exclusively 
— the  passionate  and  interested  hostility  of  Mr.  Guzman  Blanco. 

The  judges  who  receive  the  price  of  their  venality,  the  officials  who  harass  us  wit  liout  ceas- 
ing, are  represented  by  us  as  mere  instruments  of  the  chief  of  executive  power. 

On  almost  every  page  our  accusations  are  very  preci.se.  We  explain  the  numerous  and 
grievous  facts.  We  make  known  the  prime  mover,  his  financial  dickerings  with  our  adver- 
saries,his  acts  of  direct  hostility,hisfraudulent  manoHi  veis  to  injure  us,his  odious  out  rages,  his 
repeated  denials  of  justice  to  conserve  for  his  a.ssociatesand  himself  the  profit:-^  of  the  railroad. 
Guzman  Blanco  (ex-Ceiba)  and  thecabinet  of  Caracas  maintamsa  religious  silence.  Sine  in 
two  citations,  from  our  memoir  it  does  not  pronounce  even  once  the  name  of  Mr.  Guzman 
Blanco. 

Page  63  : 

We  understand  the  embarrassment  of  the  (-abinct  of  Caracas.  Ttie  subject  was  rugged 
and  the  way  very  slippery.     *     *     * 

We  retain  in  this  debate  not  certainly  Mr.  Guzman  Blanco,  whom  international  law 
defends  against  our  investigations,  but  the  chief  of  the  executive  power  wlu>.se  acts  have 
engaged  the  responsibility  of  his  country. 


116  FABIANI    CASE. 

Venezuela  ought  to  take  accoutit  of  the  "faits  du  prince  "  and  denials  of  justice  imputab!e 
to  its  former  master,  as  well  as  the  denials  of  justice  anticipated  by  the  convention  of 
November  26,  1885,  in  the  afl'airs  which  are  the  resorts  of  the  civil  or  penal  justice. 

The  personal  acts  of  the  chief  of  executive  power  are,  moreover,  grave  as  the  denials  of 
justice  imputable  to  a  district  judge,  and  even  to  a  court  of  cassation. 

The  flagratit  violation  of  the  law  of  nations  by  the  chief  executive  power  of  a  country 
offers  another  interest  for  the  peace  of  nations  than  the  injury  brought  to  the  rules  of  inter- 
national law  by  the  brutality  or  the  venality  of  some  graduates  of  the  University  of  Caracas. 

Page  65: 

The  faithful  executor  of  the  constitution  was  held  to  demand  without  delay  the  respect 
of  the  Federal  compact,  and  his  calculated  inaction  constituted  a  denial  of  justice.  In  refus- 
ing to  intervene  and  in  shifting  upon  the  high  Federal  court  the  obligation  which  was  strictly 
incumbent  upon  him  the  executive  power  committed  knowingly  and  with  premeditation  a 
denial  of  justice,  the  consequences  of  which  have  been  decisive,  and  this  denial  of  justice 
has  had  for  an  end  to  safeguard  the  personal  interests  of  the  chief  of  state. 

Page  78: 

If  the  denial  of  justice  which  we  impute  to  the  chief  of  executive  power  of  \'enezuela  is 
established,  the  gravity  of  this  infraction  will  occupy  with  good  right  the  attention  of  the 
arbitrator.  In  fact  more  than  half  our  memoir  concerns  the  acts  and  deeds  of  Mr.  Guzman 
Blanco. 

From  these  copious  excerpts  it  is  easily  seen  that  the  demaiuhint, 
Fabiani,  came  before  the  Mixed  Commission,  sitting  at  Caracas  in 
1903,  under  the  convention  of  February  19,  1902,  with  the  claim  that 
the  act  of  the  honorable  arbitrator  of  Berne  in  dismissing  the  greater 
part  of  his  case,  was  solely  a  jurisdictional  decision,  leaving  unaffected, 
as  though  never  presented  to  him,  the  claims  thus  dismissed. 

The  honorable  commissioner  for  Venezuela  rejected  the  case  as 
presented  in  all  and  every  part,  for  the  reason  that,  in  effect,  the 
entire  Fabiani  controversy  was  submitted  to  the  final  and  conclusive 
arbitrament  and  award  of  the  honorable  arbitrator  of  Berne  by  the 
high  contracting  parties  in  their  protocol  at  Caracas  of  date  Feb- 
ruary 24,  1891,  and  that  when  the  controversy  was  submitted  under 
said  protocol  and  the  honorable  arbitrator  of  Berne  had  assumed 
and  accomplished  his  important  trust  the  entire  Fabiani  contention 
was  at  an  end. 

Since  the  honorable  commissioner  for  Venezuela  had  not  consented 
to  discuss  the  figures  presented  by  M.  Fabiani,  the  honorable  commis- 
sioner for  France  has  regarded  himself  as  "under  the  obligation  of 
accepting  them  as  a  whole."  The  honorable  commissioner  for  France 
also  states  : 

As,  moreover,  none  of  his  (Fabiani's)  demands  have  i)een  contested  in  the  foundation  and 
in  the  figures  by  the  respondent  Government,  it  has  not  appeared  possible  to  me  to  put 
them  aside  or  to  reduce  the  amount.  I  have  consequently  accorded  to  M.  Fabiani  the  indem- 
nity which  he  claims.o 

a  Page  96. 


OPINION    OP^    TTMPIRK.  117 

The  honorable  commissioners,  ñnding  tlicniselvos  hopelessly  in  dis- 
agreement, reserve  this  claim  for  the  consideration  and  determination 
of  the  nmpire,  to  whom  it  has  been  submitted  with  the  very  helpful 
opinions  rendered  by  each,  setting  forth  very  clearly  the  points  for  and 
against  the  claims  of  Fa])iani  and  his  right  thereon  to  be  heard  again 
before  an  arbitral  tribunal. 

First  to  be  determined  is  the  issue  whether  there  is  or  is  not  aught  to 
be  produced  before  this  tribunal  of  the  matters  once  submitted  to  the 
arbitrament  and  award  of  the  honorable  arbitrator  of  Berne  under  the 
protocol  eflected  by  the  two  nations  at  Caracas,  February  24,  1^91. 

An  analysis  of  this  treaty  discloses,  in  its  first  paragraph,  that — 

tlic  Govormiu'iit  of  the  United  States  of  Venezuela  and  the  Government  of  th(i  French 
Republic  have  agreed  to  submit  to  an  arbitrator  the  claims  of  M.  Antonio  Fabiani  against 
the  Venezuelan  Government. 

It  will  be  observed,  then,  that  the  matter  to  ])e  submitted  for  arbitra- 
tion is  the  'U-Jaims"  of  Fa})iani — not  certain  claims  of  Fabini,  not  a 
part  of  his  claims,  but  his  claims,  which  clearly  and  dcfmitely  includes 
all  Ms  claims  against  the  respondent  Government.  It  would  not  be 
more  sure,  more  precise,  had  it  been  written  "all  of  the  claims  of  M. 
Antonio  Fabiani,"  etc.  This  is  the  position  taken  by  M.  Fabiani  him- 
self, who  presented  all  of  his  claims  against  the  respondent  Govern- 
ment to  the  honorable  arbitrator  of  Berne,  and  urged  upon  him  that  it 
was  his  right  and  duty  to  consider,  pass  upon,  and  allow  them  as  all 
coming  within  the  terms  of  the  ])rotocol;  and  who,  consistent  with 
his  former  position,  but  respectful  to  an  adverse  decision,  still  insists 
that  such  was  its  true  scope  and  spirit.  Had  nothing  posterior  to  this 
first  paragraph  been  written,  the  way  of  the  claimant  would  have 
been  easy  and  the  hearing  unrestricted.  Such,  however,  was  not  the 
agreement  of  the  two  honorable  Governments.  Restrictions  are 
imposed  and  must  be  heeded.  When  understood  they  must  be 
respected  and  obeyed,  for  they  are  to  the  honorable  arbitrator  of  Berne 
and  to  all  who  come  after  him  the  supreme  law  of  his  tribunal. 

Two  principal  duties  were  presented  to  the  arbitrator  by  the  j^roto- 
col  of  February  24,  1891. 

He  was,  first,  to  decide  under  certain  limitations,  licreinaíter  to  be 
stated,  whether  the  Venezuelan  Government  was  responsible  for  the 
damages  which  Fabiani  claims  to  have  sustained  at  its  hands. 

This  was  the  logical  course  ol  procedure  had  no  direction  been  given, 
but  it  is  made  obligatory  and  imperative  by  the  terms  of  the  conven- 
tion. It  is  not  permitted  that  the  honorable  arbitrator  shall  make  his 
decision  without  the  definitive  aid  of  the  high  contracting  powers. 
They  do  not  consent  that  ho  pursue  his  own  course  and  use  his  own 
tests  in  arriving  at  his  conclusions  upon  the  question  thus  submitted; 
neither  do  they  admit  that  the  honorable  arbitrator  ma}'  ciassi.V  and 
designate  the  quality  and  character  of  the  claims  which  are  submitted 


118  FABIANI    TASK. 

to  his  decision;  on  the  contrary,  they  assume  ])<)sitively  and  linally  to 
make  for  themselves  and  for  him  a  definition  whicli  sliall  cover  and 
inchide  the  chiinis  of  Fabiani,  which,  by  agreement  of  the  two  parties, 
had  been  and  then  were  before  them,  and  were  by  this  protocol  to  be 
passed  into  the  hands  oí  the  honorable  President  of  the  Swiss  Federa- 
tion as  arbitrator,  and  the  phrase  thus  used  by  them  for  his  (guidance 
was  neither  obscure  nor  indefinite,  but  was  one  common  to  the  tongues 
of  nations,  viz.,  "denials  of  justice."  It  did  not  comport  with  the 
wishes  and  purj^oses  of  these  two  Governments  nor  with  the  treaty 
relations  then  existing  between  them  that  this  phrase  should  be  inter- 
preted and  applied  unaided  by  the  terms  of  the  convention  consti- 
tuting th?  tribunal.  The  arbitrator  was  directed  to  call  to  his  aid  and 
submit  liiniseL  to  the  government  and  control  of  and  was  to  render 
his  decisions  thereon  according  to —  ^ 

tlic  laws  of  Vcnoziiolii,  tlic  general  principles  (>r  tlie  law  of  nations,  and  the  eonxcntion  in 
force  between  the  two  contracting  powers. 

Through  these  three  sources  of  information  the  arbitrator  was  to 
determine»  tho  responsibility  of  the  res])ondent  Government  in  the 
Fabiani  controversy.  This  compelled  an  interpretation  by  the  arbi- 
trator of  article  5  of  the  convention  of  November  26,  18S5,  which  was 
the  treaty  then  in  force  between  the  two  contracting  powers.  When 
thus  interpreted  it  settled  its  meaning  finally  and  conclusively,  as 
ap])lied  to  the  Fabiani  controversy,  and  in  that  respect  and  to  that 
extent,  at  least,  it  has  conclusive  and  final  force  u])on  the  question 
pending  before  the  umpire.  This  is  true  because  he  was  expressly 
directed  and  empowered  to  make  this  interpretation  b}^  the  two 
powers  whose  treaty  it  was.  His  interpretation,  thus  made,  deter- 
mined for  this  case  the  scope  and  depth,  the  spirit  and  purpose,  the 
meaning  and  efFecît  of  tho  limitations  self-imposed  by  these  two  nations 
in  their  high  compact  regulating  and  defining  the  right  of  (li])lomatic 
intervention.  It  also  effected  a  similar  decision  concerning  the  term 
"denials  of  justice,"  which  term  was  employed  in  said  treaty  in  con- 
nection with  the  limitation,  by  their  own  agreement,  placed  upon 
their  future  action  in  reference  to  the  claims  and  claimants  of  each 
nation.  This  limitation  upon  diplomatic  action  was  stated  by  the 
high  contracting  parties  to  be  in  tli(>  interest  of  peace,  harmony,  and 
concord  between  them,  evidently  believing,  on  their  part,  that  such 
injuries  and  damages  as  might  befall  their  respective  nationals  in  the 
land  ():"  th(>  other,  which  wove  not  included  in  the  terms  of  the  conven- 
tion, were  better  ignored  than  pursued;  that  the  general  tind  coiiunon 
web'are  of  the  two  uiitioiis  \v:is  of  chief  importance,  and  coidd  not 
wisely  be  jeopardi/eil  through  international  differences  and  diplo- 
matic contentious  not  rtvsting  upon  or  growing  out  of  the  causes  spe- 
cificidlv    iissigued.      i^'oi-    th(>s(>    lau(Iiil)le    n^asons    and    motives    this 


OPlNI()>r    (>K    FMPIRK.  119 

restriction  was  solemnly  (loclarod  to  ho  tho  sottlcd  conviction,  pur- 
pose, and  tuture  policy  o:  these  two  nations. 

The  protocol  of  February  24,  1S91,  was  made  not  only  in  view  of  the 
existing  treaty,  hut  that  there  might  be  no  question  in  the  mind  of  the 
honorable  arbitrator  as  to  their  purpose  scrupulously  to  regard  and  he 
governed  by  its  provisions  in  its  application  to  the  case  in  hand,  the 
compromise  incorporated  its  terms  and  made  them  fast  to  his  con- 
science and  judgment.  Examination  of  his  award  and  a  careful 
review  of  his  reasons  therefor  indicate  clearly  his  thorough  apprecia- 
tion of  tho  language  and  spirit  of  the  compromise  and  the  scope  and 
purview  of  his  trust. 

Coincident  with  his  interpretation  of  article  5  of  the  convention  of 
November  26,  1SS.5,  correlated  thereto  and  commingled  therewith, 
there  came  the  duty  to  interpret  the  meaning  of  the  protocol  of 
February  24,  1891 ,  when  it  defined  his  limit  of  action  to  be  within  such 
circumscribed  bounds  as  are  contained  in  the  laws  of  Venezuela  and 
the  general  principles  of  the  law  of  nations,  as  well  as  in  the  terms  of 
article  5,  above  alluded  to.  He  must  determine  whether  the  denials 
of  justice,  to  be  operative  in  the  case  before  him,  nuist  be  such  as 
respond  to  each  one  of  these  tests;  in  other  words,  such  as  are  not  con- 
trary to  any  one  of  them,  or  if  responsive  to  any  one,  although  opposed 
to  the  others,  it  is  sufficient.  He  must  determine  the  breadth  of  the 
reference  to  the  laws  of  Venezuela,  and,  giving  the  reference  its  proper 
significance  and  limitations,  must  seek  out  and  apply  to  the  case 
before  him  the  Venezuelan  laws  which  .he  has  held  to  be  within  the 
meaning  of  the  reference,  and  he  must  summon  before  him  and  apply 
to  the  elucidation  of  the  question  so  much  of  the  law  of  nations  as  he 
deems  applicable  thereto. 

The  second  line  of  action  assigned  him  necessarily  followed,  depended 
upon,  and  was  limited  b^^  his  disposition  of  the  first  duty  placed  in  his 
charge.  If  he. found  no  responsibility  in  Venezuela  for  the  damages 
claimed  b}'  Fabiani  because  of  denials  of  justice,  then  his  duty  was 
done  and  the  arbitration  Mas  closed  when  he  made  his  declaration  of 
such  finding. 

He  can  arrive  at  this  conclusion  In'  one  of  two  ways,  or  by  the  meet- 
ing of  both.  It  is  one  way  if  he  finds  there  have  been  in  fact  no 
denials  of  justice.  It  is  the  other  way  if  he  finds  denials  of  justice, 
but  also  finds  that  they  are  not  such  as  attached  responsibility  to 
Venezuela.  Either  finding  absolves  Venezuela.  If  he  holds  Vene- 
zuela responsible  in  any  part,  it  must  be  upon  the  bases  that  in  his 
sound  judgment  there  are  denials  of  justice  and  that  they  are  of  a 
character  to  fix  responsibility  upon  Venezuela.  A  concurrence  of  these 
two  conditions  must  exist  or  the  award  must  always  be  for  Venezuela, 
and  to  the  extent  that  there  is  nonconcurrenre  the  nwnrd  must  he  for 
Venezuela. 


120  FABIANI    CASE. 

Examination  of  the  award  of  the  honorable  arbitrator  of  Berne,  and 
a  study  of  the  reasons  he  sets  forth  to  justify  his  findints^s,  discloses  that 
he  entered  upon  the  discharo;e  of  his  hij^h  duty  with  thorouo;h  appre- 
ciation of  the  character  and  the  importance  of  his  trust. 

On  page  22  of  his  award  he  said  : 

In  the  very  first  place  it  is  important  exactly  to  determine  the  object  of  the  controversy  sub- 
mitted for  arbitration.  According;  to  the  compromise  of  the  24th  of  February,  1891,  the 
question  at  issue  is  that  of  knowing  whether,  according  to  the  laws  of  Venezuela,  the  prin- 
ciples of  the  law  of  nations  and  the  convention  of  the  2Gth  of  November,  18.S.5,  in  force 
between  the  two  contracting  powers,  the  Venezuelan  Government  is  responsible  for  the 
damages  which  Fabiani  says  to  have  sustained  for  denials  of  justice.  Even  independently 
of  the  intention  of  the  parties  manifested  during  the  negotiations  to  which  the  Franco- 
Venezuelan  Convention  of  188.5  gave  rise  it  evidently  appears  from  the  very  text  of  the 
compromise  and  from  the  union  of  the  facts  of  the  case  that  the  respondent  Government  is 
proceeded  against  only  on  account  of  the  nonexecution  by  the  Venezuelan  authorities  of  the 
award  rendered  at  Marseilles  on  the  1.5th  of  December,  18S0,  between  Antonio  Fabiani  on 
the  one  hand  and  B.  and  A.  Roncayolo  on  the  other.  The  claimant  Government  even 
appears  to  acknowledge  that  the  initial  denial  of  justice  is  the  decision  of  the  lltli  of  Novem- 
ber, 1881  (réplique,  p.  2);  and,  as  will  hereinafter  be  seen,  it  is  useless  to  investigate  whether 
one  must  consider  the  decision  of  the  11th  of  November,  1881,  rather  than  that  of  the  GLh  of 
June,  1882,  as  the  starting  point  of  the  eventual  responsibilities  incurred  in  the  sense  of  the 
compromise. 

He  decides  that  the  act  must  be  considered  a  denial  of  justice  if  it 
be  such  under  the  laws  of  Venezuela,  the  law  of  nations,  or  the  con- 
vention of  the  2r)t]i  of  Xovember,  1885.  He  holds  that  the  "absolute 
concordance  of  these  juridical  sources"  is  not  necessary.  This  isa 
liberal  construction  and  is  very  favorable  to  the  claimant  Government. 
After  a  careful  study  and  an  assembling  of  the  laws  of  Venezuela, 
which  he  considers  in  point,  and  as  a  result  of  his  study  of  them  he 
holds  that  there  is  no  essential  or  even  notable  difference  between  any 
of  the  three  juridical  sources  and  the  others  on  this  subject.  He  fin-, 
ther  holds  that  the  convention  of  1885  settles  the  right  of  diplomatic 
intervention  between  the  two  nations;  that — 

in  fact  an  international  act  substituted  on  this  point  a  purely  national  law  (see  Article  X  of 
the  Venezuelan  Con.stitution  of  1881)  ;  and  although  the  compromise  reserves  the  application 
of  the  Venezuelan  laws  it  only  refers  to  such  of  those  laws  as  are  opposable  to  the  claimant 
Government;  now  that  of  1873  was  modified  for  the  French  citizens  in  its  Article  V,  at  least, 
by  a  posterior  convention,  binding  for  the  two  States  that  sign  a  compromise. 

His  study  of  this  branch  of  the  case  leads  him  to  conclude  and  to 
hold  that — 

the  only  definition  which  it  is  possible  to  take  into  consideration  in  the  \'enczuclan  law  is  that 
of  articles  282  and  288  of  the  penal  code  of  1873,  which  assimilate  with  the  denial  of  justice 
any  act  of  a  ]udicial  «u/Aori «;/ const  it  utmg  a  refusal  to  execute  a  sentence  rendered  executory, 
an  illegal  delay  in  the  dispatch  of  business,  a  default  to  render  orders  and  .sentences  within 
the  terms  established,  an  undue  extension  or  reduction  of  the  terms  established  by  the  law  or 
any  delay  in  the  determination  of  a  process.  The  refusals  of  execution,  the  inobst'rvance  of 
peremptory  terms,  and  the  illegal  delays  witli  which  the  judges  may  be  reproached  in  the 
exercise  of  their  duties  are  therefore  the  three  orders  of  facts  characterizing  the  denial  of 
justice  in  the  legislation  of  X'cneziiela. 


OPIKION    OF    UMPIRE.  121 

He  then  proceeds  to  consider  and  define  the  meaning  of  the  phrase 
"denials  of  justice"  and  in  that  connection  employs  the  language  and 
reaches  the  decision  which  appears  in  a  quotation  taken  from  page  24 
of  his  printed  award,  viz: 

A  direct  definition  of  the  denial  of  justice  is  not  given  by  Article  V  of  the  French-Vene- 
zuelan convention.  This  text  points  it  out  only  among  the  causes  for  diplomatic  interven- 
tion, and  one  might  even  believe  that  it  distinguishes  it,  in  a  certain  way,  from  the  other 
causes  of  intervention — delays,  nonexecution  of  a  definitive  sentence,  etc.,  or  that  it  dis- 
tinctly separates  it  from  them.  But  without  anj'  necessity  for  examining  whether  the 
parties  employed  in  the  compromise  the  expression  "dénégation  de  justice"  as  the  exact 
efiuivalcnt  of  the  expression  "déni  de  justice,"  which  is  generally  adopted  by  legislation, 
jurisprudence,  and  doctrine,  it  is  permitted  to  affirm  that  Article  V  above  mentioned  fully 
assimilates  with  the  "déni  de  justice"  as  to  their  eíTects,  the  illegal  delays  of  the  proceed- 
ing, the  nonexecution  of  definitive  sentences,  the  flagrant  violations  of  the  law  committed 
under  the  appearance  of  legality.  In  all  these  cases  the  diplomatic  intervention  is  declared 
admissible,  provided  the  question  may  be  any  añ"air  falling  within  the  "competence  of  the 
civil  or  penal  justice."  The  condition  established  by  the  decree  of  1873,  of  the  exhaustion 
of  the  legal  resources  before  the  courts,  is  not  recalled  in  the  convention  of  1885,  and  it 
would  be  excessive  to  .say  that  Article  V  in  fine  of  this  international  act  ("notwithstanding 
the  compliance  with  all  the  legal  formalities")  refers  to  the  actions  for  responsibility  di- 
rected against  the  guilty  authorities;  these  "legal  formalities"  mean  those  to  the  observa- 
tion of  which  is  subjected  the  performance  of  the  judicial  act  that  may  have  determined 
a  denial  of  justice  or  one  of  the  other  causes  for  the  diplomatic  intervention  ;  they  are,  there- 
fore, prior  to  the  denial  of  justice  itself. 

By  reference  to  the  general  principles  of  the  law  of  nations  on  the  denial  of  justice,  i.  e.,  to 
the  rales  common  to  most  legislations  or  taught  by  doctrines,  one  comes  to  decide  the  denial 
of  justice  comprises  not  only  the  refusal  of  a  judicial  authority  to  exercise  its  duties,  and 
especially  to  render  a  decision  on  the  petitions  submitted  to  it,  but  also  the  obstinate  delays 
on  its  part  in  rendering  its  sentences. 

After  citing  numerous  authorities  to  sustain  his  position  the  hon- 
orable arbitrator  proceeds  to  say  further  concerning  this  same  subject- 
matter,  as  found  on  pages  24  and  25,  as  follows: 

In  truth,  the  compromising  powers  appear  to  have  desired  to  give  the  words  "  dénégations 
de  justice"  their  widest  extent  {juMitia  denegata  vel  protracta)  and  include  therein  all  the 
acts  of  judicial  authorities  implying  a  direct  or  disguised  refusal  to  administer  justice. 
Instead  of  textually  reproducing  the  terms  of  the  convention  of  1885,  they  chose  a  general 
formula  comprismg  within  the  limits  of  said  convention  the  complaints  for  judicial  griev- 
ances of  Fabiani  agamst  Venezuela,  which  complaints,  if  they  are  valid,  have,  partially, 
at  least,  the  extent  of  denials  of  justice,  both  according  to  Article  V  of  this  international 
act  and  according  to  the  Venezuelan  law  and  the  law  of  nations.  It  was,  in  effect,  the 
claims  of  Fabiani,  communicated  to  his  government,  that  must  have  inspired  the  wording 
of  the  compromise,  and  the  duty  of  the  arbitrator  precisely  consists  in  deciding  whether 
Venezuela  "is  responsible  for  the  damages  which  Fabiani  says  to  have  sustained  for 
denials  of  justice." 

It  IS  not  doubtful  that  at  the  time  the  compromise  was  signed  the  claims  of  Fabiani 
rested,  i.  e.,  both  upon  denials  of  justice  sensu  stricto  and  upon  other  facts,  such  as  the 
denials  of  justice  sensu  lato,  indicated  in  the  convention  of  1885. 

In  all  of  these  findings  he  accepts  and  adopts  the  broadest  and  most 
liberal  construction  permissible  under  either  of  the  juridical  sources 
given  him  for  guidance.     In  all  this  his  holdings  are  verv  favorable  to 


122  FAHIANI    CASE. 

the  claimant  government  and  give    the  controversy  of  Fabiani  its 
widest  possible  application  within  the  terms  of  the  convention. 

On  page  25  the  honorable  arbitrator  discusses,  determines,  and  set- 
tles once  for  all  the  origin  and  the  object  of  the  Fabiani  controversy, 
and  he  bases  his  decision  upon  the  fact  found  by  him  that  the  object 
and.  origin  were  acknowledged  ))y  tlie  parties — i.  e.,  b}'  "France  and 
Venezuela" — to  be  as  held  by  him.     This  is  the  finding  referred  to: 

Thus,  the  object  of  tlic  controversy  and  its  origin  are  acknowledged  by  the  parties.  It 
was  on  account  of  the  refusal  of  the  execution  of  the  award  of  the  1.5tli  of  December,  1880, 
which  Fabiani  possessed  against  the  two  debtors  domiciled  in  Venezuela,  or  on  account  of 
the  default  of  execution  owing  to  tlie  admission  of  illegal  means,  that  France  took  the  inter- 
ests of  her  native  into  her  liands.  The  Venezuelan  Government  contests  the  right  of  its 
adversary  to  proceed  against  it  for  responsibility,  not  because  it  did  not  regard  the  judicial 
facts  alleged  by  Fabiani,  if  they  were  true,  as  implying  denials  of  justice,  but  In-cause  it 
s«es  the  absence  of  denials  of  justice  in  the  inaccuracv  of  these  facts  or  in  the  desertion  of 
the  proceeding  before  the  exhaustion  of  the  legal  resources.  The  parties,  supporting  them- 
selves in  the  treaty  of  arbitration  on  the  convention  of  1885,  have  considered,  although 
the}'  only  spoke,  in  the  protocol,  of  "denials  of  justice,"  that  the  arbitrator  could  reserve 
as  elements  of  the  suit  the  facts  falling  within  the  scope  of  the  above-mentioned  convention 
and  constituting  denials  of  justice  both  according  to  the  Venezuelan  law  and  to  the  law 
of  nations.  In  the  judgment  of  the  parties  concerned,  therefore,  and  according  to  the 
applicable  texts,  "denials  of  justice,"  in  the  sense  of  the  protocol,  mean  all  the  direct 
or  disguised  refusals  to  judge,  all  illegal  delays  in  the  proceedings  and  nonexecutions  of 
definitive  sentences,  provided  the  facts  concern  affairs  of  the  civil  or  penal  jusiire,  are  imput- 
able to  judicial  authorities  of  Venezuela,  and  have  taken  place  in  spite  of  the  compliance 
with  all  the  legal  formalities  b}'  the  prejudiced  party. 

On  page  26  of  his  award,  he  says: 

It  is  certainly  the  denials  of  justice,  committed  in  the  course  of  the  proceeding  for  the 
execution  of  the  award  of  the  15th  of  December,  1880,  and  the  eventual  appreciation  of 
their  pecuniary  consequences  that  form  the  object  of  the  present  litigation. 

Tlio  claimant  contended  before  the  honorable  arl)itratt)r  of  Berne 
that  Fal)iani  might  go  back  of  the  award  of  December  15,  1S80,  to 
marshal  his  demands  for  indemnity,  because,  it  was  urged,  he  signed 
the  compromise  at  Caracas  under  the  dominion  of  force  majeure  ñnd 
that  it  did  not  cover  the  })rior  denials  of  justice.  But  the  honorable 
arbitrator  considers  this  contention  ill  founded,  holding,  on  page  26  of 
his  award,  that — 

Fabiani,  who  could  have  had  the  compromise  annulled  by  the  French  courts,  preferred 
to  conserve  the  future  of  his  commerce  in  Venezuela  by  exhausting  all  means  of  conciliation. 
Fa  biam  contented  lumself  with  the  state  of  things  created  by  the  acceptance  of  the  arbitrator's 
jurisdiction,  and,  besides,  Irom  that  moment,  his  judicial  ellorts  in  Venezuela  only  tended 
to  the  execution  of  the  judgment  of  the  lôtli  of  December,  ISSO.  The  motives  drawn  from 
the  mfi  major,  which  would  have  affected  the  compromise  of  ISSO,  and  would  remove  further 
hack  the  starting  point  of  the  denials  of  justice  comprised  in  the  present  instance,  can  not 
he  taken,  therefore,  into  consideration.  Denials  of  justice,  in  virtue  of  which  it  would  lie 
possible  to  proceed  against  Venezuela  for  responsibility  lx>fore  the  arbitrator,  can  not  have 
taken  place  before  the  introduction  of  the  proceeding  for  the  execution  of  the  award  of  the 
15th  of  December,  ISSO,  or  before  the  7lh  of  June,  1881,  the  date  of  the  petition  for  ejre- 
f/natiir,  enlercd  Iwforc  the  high  fedcial  cniirl. 


OPINION    OF    UMPIRE.  123 

Similarly,  the  lu)noral)le  arbitrator  proceeds  to  dispose  of  the  con- 
tention that  there  were  denials  of  justice  in  reference  to  the  award  of 
December  15,  1880,  and  its  execution  from,  substantially,  June  18, 
1881,  and  determines,  after  all,  from  the  proper  union  of  the  facts  and 
law,  that  there  were  no  denials  of  justice  until  after  June  6,  1882,  the 
day  on  whicli  such  award  was  made  executory  in  Venezuela  by  (he 
decision  of  the  hij2;h  federal  court  of  that  country. 

In  regard  to  this  he  says  : 

The  series  of  denials  of  justice  begins  almost  from  the  very  moment  Fabiani  endeavored 
to  obtain  at  Maracaibo  the  execution  of  the  award  provided  thenceforward  by  an  order  of 
exequatur  in  due  form. 

Notwithstandino;  the  terms  of  the  convention  of  February  24,  1891, 
wherein  and  whereby  the  high  contracting  parties  invoked  as  an  aid 
to  the  ar})itrator  the  provisions  of  the  convention  then  in  force 
between  them,  the  claimant  Government  raised  before  the  honorable 
arbitrator  of  Berne  the  claim  that  Article  V  of  said  convention  was  not 
applicable  to  the  Fabiani  controversy^,  because  all  of  his  claims  for 
indemnity  had  arisen  before  November  26,  1885,  and  that  to  apply  it 
in  such  a  case  would  be  to  give  it  retroactive  effect,  which  is  contrary 
to  fundamental  principles  in  the  administration  of  justice.  This  con- 
tention the  honorable  arbitrator  held  to  be  ineffective  for  the  reasons 
stated  b}'  him  on  pages  23  and  24  of  his  award,  viz: 

But  in  the  present  instance  it  is  not  Fabiani  personally  who  is  a  party  in  the  issue.  The 
arbitration  was  concluded  not  between  him,  but  between  the  French  Republic  and  Vene- 
zuela. The  claimant  state  is  bound  by  the  above-mentioned  international  act  for  all  the 
international  interventions  to  come.  For  the  rest,  it  is  expressly  acknowledged  that  the 
convention  is  applicable  to  the  present  contestation  by  the  compromi.se  of  the  24th  of 
Febniary,  1891;  it  is  a  law  as  between  the  two  countries. 

The  nonresponsibility  of  Venezuela,  as  established  by  the  honorable 
arbitrator  of  Berne,  so  far  as  and  to  the  extent  which  he  found  sucli 
nonresponsibility,  is  clearly  set  forth  by  him  on  pages  25  and  26  of  his 
award,  viz: 

In  return  Venezuela  does  not  incur  any  responsibility,  according  to  the  compromise, 
on  account  of  facts  strange  to  the  judicial  authorities  of  the  respondent  State.  The  claims 
that  the  petition  bases  on  "faits  du  prince,"  which  are  either  changes  of  legislation  or 
arbitrary  acts  of  the  executive  power,  are  absolutely  subtracted  from  the  decision  of  the 
arbitrator,  who  eliminates  from  the  procedure  all  the  allegations  and  means  of  proof  relating 
thereto,  as  long  as  he  can  not  reserve  them  to  establish  other  concluding  and  connected 
facts  relating  to  the  denials  of  justice. 

In  another  place,  on  page  26,  after  having  set  the  earliest  limit  when 
denials  of  justice  could  have  place  before  him,  as  against  the  respond- 
ent Government,  he  says: 

The  arbitrator  has  not,  therefore,  admitted,  besides  the  ''fails  du  piirur,"  all  of  the  facts 
strange  to  the  nonexecution  and  to  the  eflects  of  nonext'cution  <if  the  sentence  above 
referred  to,  to  be  proved. 


124  FABtANr    CASE. 

Ha  vino;  determined  in  liis  award  in  what  particulars  denials  of  jus- 
tice consisted,  and  when  they  beo^an,  and  how  they  arose,  he  proceeds 
to  fix  the  measure  of  responsibility  attaching;  to  Vcnc^zuela  therefor; 
and  then  to  measure  and  assess  the  damaujes  which  had  occurred 
because  of  such  denials  of  justice. 

On  the  30th  day  of  December,  1896,  the  honorable  arbitrator  of 
Berne  renders  his  award  and  delivers  the  same  in  writing,  with  his 
reasons  therefor,  to  the  respective  representatives  of  the  claimant  and 
the  respondent  Governments. 

Following  the  award  and  its  publication,  the  respondent  Govern- 
ment entered  upon  the  discharge  of  the  requirements  thereof  and  has 
fully  complied  therewith.  The  amounts  so  awarded  and  so  paid  have 
been  accepted  by  M.  Fabiani  under  the  implied  consent  and  approval 
of  his  government.  No  evidence  is  adduced,  no  suggestion  is  made, 
that,  following  the  award,  the  Government  of  France,  on  its  part,  has 
filed  with  the  Government  of  Venezuela  any  dissent  to  or  protest 
against  the  decision  of  the  honorable  arbitrator,  or  has  in  any  manner 
addressed  itself  to  the  respondent  Government  to  ask  a  rehearing,  a 
further  hearing,  or  the  opening  of  said  cause  in  whole  or  in  any  part,  or 
to  manifest  the  unacccptability  of  the  award  as  made  or  to  express  or 
to  intimate  any  dissatisfaction  therewith,  or  any  purpose  or  desire  on 
its  part  to  have  the  Fabiani  controversy  regarded  by  the  two  govern- 
ments as  a  pending  and  open  question  in  any  particular  or  in  any  part. 
In  all  respects,  and  in  every  respect,  so  far  as  appeared  before  the 
umpire,  there  has  been  apparent  assent  to,  acceptance  of,  and  acquies- 
cence in  the  award  on  the  part  of  the  Government  of  France,  and,  on 
its  part,  an  apparent  treatment  of  the  Fabiani  incident  and  contro- 
versy as  satisfactorily,  finally,  and  conclusively  closed.  Such,  also, 
has  appeared  to  be  the  position  of  the  Government  of  Venezuela  in 
relation  thereto.  Neither  does  it  appear  before  the  umpire  that 
Fabiani,  prior  to  the  sitting  of  the  honorable  commission  at  Caracas, 
had  evidenced  to  the  Government  of  Venezuela  through  his  own  Gov- 
ernment or  otherwise,  that  he  regarded  the  decision  at  Berne  as  set- 
ting at  rest  a  part  only  of  his  claim  or  that  he  asked  of  his  Government 
or  expected  of  his  Government  further  intervention  on  his  behalf  in 
reference  to  the  same.  Nothing  appears  in  tlie  case  to  indicate  tliat 
the  Fabiani  controversy  has  been  treated  or  considered  diplomatically 
between  the  two  governments,  as  to  any  phase  thereof,  since  the  award 
at  Berne,  nor  that  the  same  was  referred  to  as  such  when  the  conven- 
tion of  February  19,  1902,  was  in  progress  or  under  consideration;  and 
the  umpire  understands  the  claim  to  be  that  it  is  within  the  terms  of 
that  conv^ention  solely  because,  and  only  l)ecause,  of  the  unrestricted 
character  of  those  terms;  because,  and  only  because  this  commission  is 
said  to  be  open  to  the  claims  of  Frenchmen,  without  having  any  words 


OPINION    OF    UMPIRE.  125 

of  definition  or  restriction  other  than  the  nationaUty  of  the  claimant 
and  the  time  of  its  origin. 

The  umpire  is  compelled  respectfully  to  dissent  from  the  proposition 
made  by  Fabiani  that  such  parts  of  his  claims  as  were  not  allowed  by 
the  honorable  arbitrator  were  not  allowed  through  tlie  lack  of  compe- 
tency to  dispose  of  them  througli  lack  of  jurisdiction  over  them.  It  is 
the  opinion  of  the  umpire  that  the  honorable  arbitrator  had  complete 
and  absolute  dominion  over  the  whole  Fabiani  controversy;  that  it 
was  given  him  by  the  purposed  and  carefidly  considered  ct)ncordant 
action  of  the  two  Governments  by  their  compromise  of  February  24, 
1891,  in  order  that  a  matter  which  for  some  years  had  vexed  and 
troubled  them  might  thereby  attain  eternal  rest  and  be  no  longer  a 
disturbing  element,  a  serious  cause  of  dissension  between  them. 

Concerning  this  the  honorable  commissioner  for  France  in  his  supple- 
mentary opinion  has  said  :  " 

In  the  first  place  Doctor  Paúl  supports  himself  upon  the  text  of  the  convention  of  the 
24th  of  February,  1891,  which  is  the  agreement  of  arbitration,  and  upon  the  exchange  of 
diplomatic  correspondence  which  has  preceded  this,  in  order  to  demonstrate  that  the  inten- 
tion of  the  two  Governments  was  really  to  determine  definitely  all  the  claims  of  M.  Fabiani 
against  Venezuela.  I  do  not  deny  this.  I  even  add  that  the  Frcncii  Government,  faithful 
to  the  spirit  which  had  inspired  the  negotiations,  did  not  cease  to  maintain  this  interpreta- 
tion of  the  agreement  in  the  course  of  the  discussions  which  were  engaged  in  before  the  Swiss 
arbitrator.  It  was,  to  the  contrary,  the  representatives  of  the  Venezuelan  Government  at 
Berne  who,  hoping  to  find  in  the  terms  of  the  convention  unfortunately  "  ambiguous,"  the 
possibility  for  Venezuela  of  eluding  a  part  of  her  responsibilities,  combated  this  broad  inter- 
pretation in  several  instances  and  substituted  for  it  a  restrictive  interpretation. 

There  is,  then,  no  disagreement  between  the  parties  that  the  purpose 
of  the  compromise  of  February  24,  1891,  was  to  settle  the  whole  mat- 
ter contained  in  the  Fabiani  controversy.  The  contention  before  the 
umpire  rests  upon  a  different  basis.  The  respondent  Government 
claims  that  not  only  was  the  purpose  of  the  compromise  as  stated,  but 
also  that  this  purpose  was  effected  and  the  Fabiani  incident  closed. 

Fabiani  claims  that  because  of  the  holding  of  the  honorable  arbi- 
trator of  Berne  that  denials  of  justice  as  such  applied  to  matters  judi- 
cial; that  in  the  case  before  him  denials  of  justice  were  only  found  in 
the  nonexecution  of  the  sentence  of  Marseilles;  that  they  began  after 
June  6,  1882;  that  there  was  no  recourse  by  Fabiani  to  judicial  tribu- 
nals other  than  those  connected  with  this  sentence,  and  hence  no 
other  opportunity  for  denials  of  justice;  that  such  "faits  du  pñnce" 
as  bore  so  immediately  or  approximately  upon  the  execution  of  said 
sentence  as  to  have  an  appreciable  effect  thereon,  were  the  only  ''/aits 
du  pñnce '^  to  be  considered  under  the  compromise;  that  because  of 
these  decisions  the  purpose  entertained  by  the  two  Governments  at 
the  time  of  their  convention  of  Februar}-  24,  1891,  to  thereby  settle 
through  the  arbitration  there  provided  for  all  of  the  Fabiani  contro- 

opage  103. 


126  FABIANI    CASE. 

versy  was  frustrated,  and  that  the  honorable  arbitrator,  m  effect,  at 
least,  eliminated  and  subtracted  all  else  as  not  being  within  his  com- 
petency under  the  protocol,  and  thereby  especially  reserved  all  these 
for  the  use  of  Fabiani  under  some  later  convention,  the  terms  of  which 
should  be  more  liberal. 

To  the  contrary,  the  honorable  commissioner  for  Venezuela  holds 
the  opinion  that  in  making  the  decisions  referred  to  the  honorable 
arbitrator  proceeded  strictly  in  accordance  with  the  terms  of  the  pro- 
tocol, which,  while  submitting  all  the  claims  of  Fabiani  to  his  conclu- 
sive and  final  determination,  required  and  permitted  an  award  against 
the  Government  of  Venezuela  for  such  of  those  claims  only  as  resulted 
from  or  grew  out  of  the  denials  of  justice,  and  for  such  of  these  only  as 
found  responsibility  in  such  Government,  lie  alleges  as  truth  that 
the  claimant  Government  before  the  Swiss  arbitrator  pressed  with 
vigor  and  to  the  end  that  every  item  presented  in  Fabiani's  tables  of 
claims  was  properl}"  classed  as  a  denial  of  justice  and  was  a  just 
demand  against  the  respondent  Government  under  the  terms  of  the 
protocol,  and  in  general  that  the  reparation  to  be  made  by  the 
responding  Government  should  be  found  by  the  arbitrator  to  com- 
prise— 

all  the  denials  of  justice,  whether  the\' wore  inipiital)lo  to  the  judicial  authorities  orto 
the  administrative  authorities  of  Venezuela  (these  latter  naturally  indudins;  the  arhitrary 
a.cts  o{  faits  du  prince  attrihutahle  to  the  Federal  executive),  aiul  all  the  damages  which 
Fahiani  says  to  liave  suii'ered  through  the  fault  of  the  pul)lic  powers  of  N'cnezuela. 

and  strenuously  urges  upon  the  arbitrator  that  he  was  given  '•]>leni- 
tude  of  jurisdiction"  to  determine  all  of  these  questions,  lie  also  admits 
as  truth  that  the  responding  Government,  while  insisting  that  the 
whole  controversy"  of  Fabiani  was  before  the  arbitrator  for  his  final 
disposition  and  while  denying  emphatically  that  there  had  been  "any 
denial  of  justice  or  any  cause  of  resort  to  diplomatic  intervention," 
asserts  affirmatively  that  denials  of  justice  are  limited  to  judicial  pro- 
ceedings and  do  not  at  all  include  administrative,  legislative,  or  execu- 
tive acts. 

It  is  thus  the  two  Governments  clash;  it  is  thus  they  contend  before 
the  honorable  arl)itrator  of  Berne.  But  it  is  not  over  the  (luestion  of 
jurisdiction;  it  is  not  over  the  question  of  his  competency.  Both 
admit  his  juiisdiction  ;  both  adhere  to  his  competency.  The  ccmtest 
is,  first,  over  the  I'ight  of  the  claimant  (iovernment  to  demand  any  sum 
in  damages  of  the  respondent  Govern nuMit  on  behalf  of  Fabiani  under 
the  ])rotoc<)l  which  involved  two  intpiiries — first,  the  in(liisiv(Mu>.ss  of 
the  term  "denial  of  justice"  clu)sen  concordantly  to  definí»  the  claims 
whicli  are  in  dispute;  second,  the  responsibility  of  the  respondent 
Government.  Wh(>n  this  (lucstion  of  right  was  decided  then  the 
measure  of  damages  came  to  be  allowed,  if  any. 


OPINION    OF    I'Ml'IKK.  127 

When  in  the  course  of  his  decision  the  lionorahle  arhitrutor  of  Berne 
sets  aside  a  claim  of  P^al)iani  or  ehniinates  it,  it  is  hecause  in  j)rinci|)le 
and  in  law  the  arbitrator  has  first  disallowed  it  and  adjudi^ed  a<íainst 
it,  through  his  sovereign  power  to  decide  the  basic  question  submitted 
to  him  and  over  which  the  contest  has  been  made.  When  he  decides 
this  basic  question  he  settles  the  fate  of  and  effectually  determines  a 
large  part  of  the  claims  of  Fabiani.  He  did  not  extract  them  from 
the  case,  he  did  not  subtract  them;  he  decided  against  them  and  dis- 
posed of  them  adversely, not  in  detail, but  as  not  beingclaims  forwhich, 
in  principle,  Venezuela  was  res])onsible  under  the  teruis  of  the  pro- 
tocol. He  eliminated  them  from  his  consideration  only  when  he 
reached  the  question  of  damages,  lip  to  that  point  they  had  been 
before  him  and  had  been  passed  upon  b}'  him.  Examination  of  the 
arbitrator's  award  shows  that  nothing  escaped  his  attention,  that 
everything  submitted  was  carefully  considered  and  adjudged.  He 
allowed  some  things  and  disallowed  others,  over  all  of  which  he  liad 
rightful  and  exclusive  dominion  and  sovereignty.  He  did  just  what 
Fabiani  assured  him  he  ought  to  do,  and  to  the  doing  of  which  Fabiani, 
in  advance  of  the  arbitrator's  action,  bowed  in  assent. 

That  he  may  do  Fabiani  no  injustice  by  this  statement,  the  umpire 
will  present  a  few  excerpts  from  the  replique  of  Fabiani  before  the 
honorable  arbitrator  of  Berne,  and  later  from  his  exposé  before  the 
same  person,  and  first  from  page  16  of  his  réplique: 

111  our  opinion  the  (¡ucstion  can  lie  consideied  under  iUU)tlicr  aspect,  ilial  oí  liie  terms 
of  tlie  protocol — general  terms  which  autliorize  the  arbitrator  to  retain  all  denials  of 
justice  (hCly  established ,  and  wliich  permit  Fabiani  to  present  all  pecuniary  claims  relative 
to  damages  sustained  for  denial  of  justice. 

If  Fabiani  formulates  claims  rvhich  have  another  cause  than  the  denial  of  justice  or  the 
imputahilitij  of  vÂich  to  the  denial  of  justice  shotild  not  appear  certain,  the  arbitrator  irill 
reject  them,  purehj  and  simply  as  proceeding  front  the  terms  of  the  protocol, Üw  same  as  if  he 
recognizes  the  responsibility  of  Venezuela  he  will  retain  in  the  proportions  wliich  his  con- 
science shall  dictate  to  him,  all  the  damages  which  lie  shall  judge  to  be  a  direct  and  imme- 
diate result  of  infractions  committed  by  Venezuela. 

It  will  be  permitted  us  to  add  that  even  if  the  protocol,  instead  of  being  conceived  in 
general  terms,  had  given  the  full  detail  of  all  the  litigious  points,  it  would  not  be  necessary  to 
conclude  from  it  that  the  whole  motive  of  the  claim  not  expressly  enumerated  in  the  coin- 
promi.se  ought  to  have  been  brushed  aside  without  discussion  as  being  found  outside  the 
terms  of  the  protocol. 

If  it  is  not  a  question  of  another  dilference,  or  of  a  (lillcrcnce  arising  posteiioily  between 
the  parties;  if  the  new  motives  of  claim  although  thcN  niay  not  l)c  expressly  specified  in  the 
protocol,  Hnd  themselves,  nevertheless,  virtually  uuludeil  in  it,  whether  as  an  integral 
part  of  the  litigious  points  designated,  or,  as  a  consequence,  if  some  of  these  motives  of 
demand  are  found  in  the  protocol:  if  the  demand  is  no  other  than  that  winch  the  pio- 
tocol  has  foreseen  and  has  iuul  for  a  purpose  to  settle,  and,  liiially,  if  the  inolivo  which 
one  would  wish  to  have  .set  aside  should  later  give  place  to  the  same  <lebales  as  the  motives 
.set  forth  in  the  protocol,  the  arbitrator  can  appreciate  the  merit  of  these  new  motives 
and  include  them  in  his  decision. 


128  F-ABIANI    CASE. 

On  page  ülo  of  Fabiani's  exposé  he  says: 

In  this  situation  if  the  arbitrator,  after  having  examined  and  analyzed  our  diíTerent  motives 
of  claims,  were  led  to  reeognize  that  all  these  motives  are  justified  and  that  we  have  esti- 
mated our  damages  without  any  exaggeration,  Venezuela  would  be  able  to  felicitate  herself 
upon  her  insistency  in  causing  a  mode  of  payment  hardly  equitable  to  be  accepted,  etc. 

And  if  it  should  be  admitted  that  the  judge,  proceeding  either  by  wa>j  of  elimination  or  by 
way  of  reduction, considers  that  there  is  reason  to  restrain  the  measure  of  our  damages  esti- 
mated by  him  upon  the  usual  but  converted  monetary  basis,  etc. 

On  pages  616  and  617  of  his  exposé  Fabiani  sajs  in  part: 

And  if  he  considered  it  equitable  to  make  a  reduction  in  any  of  our  claims  or  if  he  considers 

that  certain  of  them  ought  to  he  laid  aside,  he  will  find  himself,  in  spite  of  the  taking  into  con- 
sideration the  course  of  the  bonds  in  the  presence  of  a  certain  lesion,  unless  he  is  led  to  dimin- 
ish in  notable  proportions  the  total  amount  of  our  claims. 

On  page  622  of  his  exposé  Fabiani  says  in  part  : 

The  compromise  confère  upon  him  purely  and  simply  the  mission  of  lixing  the  amount  of 
the  indemnity  if  he  considers  Venezuela  responsible.  The  arbitrator  acts  in  the  plenitude  of 
his  independence,  having  no  other  guide  than  his  intelligence  and  his  love  for  justice.  He 
asks  himself  if  such  a  prejudice  or  .such  a  damage  has  been  the  direct  and  necessar}'  conse- 
quence of  the  infractions  which  have  engaged  the  responsibility  of  the  defendant  party. 

On  page  624  of  his  exposé  Fabiani  says  : 

It  may  be,  however,  that  the  study  of  our  affair  and  the  detailed  examination  of  the  nume- 
rous items  of  our  claims  suggest  to  the  arbitrator  either  the  opinion  that  some  of  our  claims 
have  no  direct  and  immediate  connection  with  the  infractions  set  forth  or  the  opinion  that  cer- 
tain prejudices  declared  by  us  ought  to  be  reduced  to  a  lower  figure.  That  is  the  right  of 
the  arbitrator,  a  right  whose  exercise  is  subordinate  only  to  the  inspirations  of  his  con- 
science. We  have  not  to  prejudge  his  decision.  We  know  that  it  will  be  conformable  to 
justice  and  equity,  but  we  are  convinced  that  if  some  of  our  demands  appear  to  him  subject 
to  a  reduction  the  arbitrator,  taking  account  both  of  the  manner  of  [)ayment  and  of  the  cir- 
cumstances of  the  case,  will  accord  to  us  by  title  of  supplement  ol  indemnity  exemplary 
damages. 

Fabiani  urges  the  nonretroactivity  of  the  treaty  of  1885  through 
many  pages  of  his  exposé  and  claims  that  this  date  is  thirty  days  after 
the  last  of  the  acts  of  violence  upon  which  his  claims  rest.  On  page 
522  of  his  exposé  he  declares  that  Article  V  of  the  convention  of  1885 
governs  the  future  only;  that  Article  III  of  the  same  convention  is 
the  one  governing  the  past.  In  the  course  of  this  discussion  F'abiani 
is  aj)j)reciative  of  the  magnitude  and  persistency  with  which  X'cuc- 
zuela  had  opposed  his  claim,  and  of  the  possibility  that  if  he  hud 
))rcs.sed  his  claim  through  the  treaty  of  1885  it  might  have  been  an 
insurmountable  obstacle  to  the  reestablishment  of  the  good  r(>lations 
between  the  two  countries  and  that  therefore  no  treaty  could  iiave 
been  consummated. 

On  page  526  of  his  exposé  he  begins  a  discussion  of  his  claims  in  ref- 
erence to  the  mixed  commission  which  was  |)rovided  for  by  the  con- 
vention of  November  26,  1885,  to  determine  the  liability  of  Venezuela 
for  acts  posterior  to  1867-08  and  anterior  to  the  date  of  the  conven- 
tion, and  m  this  coinniunicatiou.  he  uses  the  following  language: 


OPINION    OF    UMPIRE.  129 

Our  claim  having  reference  to  acts  posterior  to  1867-68  and  anterior  to  November  26, 
1885,  we  evidently  had  the  right  to  appear  before  the  mixed  commission.  Why  did  wo  not 
do  so?  And,  moreover,  why  did  not  the  Venezuelan  Government  in  tlio  presence  of  the 
intervention  of  the  minister  of  foreign  alTairs  of  tlie  Frencii  Republic  itself  demand  the  send- 
ing to  this  mixed  commission,  whicli  did  not  begin  to  do  business  until  two  years  after? 
Let  us  examine  the  first  and  latter  point.  Venezuela,  reprcsenteti  by  Guzman  Bianco 
opposed  an  absolute  non  possumus.  It  denied  formally  llu!  possibility  of  a  claim  on  our 
part,  and  it  Contested  even  the  existence  of  our  right,  pushed  it  aside  without  examiiiati(;n 
and  with  the  most  remarkable  bad  faith.  The  mixed  conunission,  then,  would  not  have 
been  able  to  occupy  itself  with  our  aifair.  There  is  then  arbitracio,  because  tlie  discussion 
bears  upon  the  admissibility,  the  extent,  or  the  reality  of  the  damages.  When  the  right  is 
litigable,  and,  above  all,  when  it  is  absolutely  contested,  there  is  arbitrium.  It  is  a  ca.se  of 
arbitration,  properly  called,  or  of  mediation. 

In  the  matter  of  damages  the  mediator  generally  takes  upon  himself  to  give  his  opinion 
upon  the  (juestion  of  right  and  leaves  to  the  mixed  conunission  tiie  care  of  deciding  upon  the 
extent  of  damage.  The  mi.ssion  of  the  arbitrator  is  determined  by  the  protocol,  and 
more  often  he  is  charged  with  the  pronouncing  upon  the  right  and  upon  the  act.  We  do 
not  suppose  that  these  rules  can  be  seriously  contested. 

In  discussino;  on  page  529  of  his  exposé  the  convention  of  Xovembcr 
26,  1885,  and  in  insisting  upon  the  nonretroactivity  of  the  terms  of 
Article  V,  he  says: 

If,  finally,  the  words  and  the  intention  did  not  lend  to  each  other  a  mutual  a.ssistance  for 
protesting  against  the  idea  of  retroactivity,  one  would  find  himself  in  a  .strange  situation. 
On  the  one  hand  a  Government  which  stipulates  'n  good  faith  and  which  for  causes  which  are 
useless  to  refer  to  ignores  that,  during  the  rupture  of  international  relations  one  of  its  nation- 
als has  been  on  a  large  scale  the  unfortunate  victim  of  the  hostility  of  the  public  powers  of 
Venezuela,  the  Turk's  head  of  an  incensed  chief  of  state,  *  *  *  is  it  necessary  to  recall 
that  mental  reservations  ought  to  be  energetically  laid  aside Í  In  that  which  concerns  us 
we  have  suffered  too  much  in  Venezuela  not  to  protest  against  this  attempt  to  make  an 
attack  upon  the  principle  of  the  nonretroactivity  of  the  laws.  We  hold  essentially  to  prove 
to  Mr.  Blanco  that  his  last  blow  has  not  succeeded.  He  ha.s  failed  in  di.scernment  when  he 
has  not  considered  the  convention  of  November  26,  1885,  as  his  supreme  work,  destined  to 
serve  his  anger  and  to  create  for  us  new  difficulties.  The  conscientious  study  of  our  afTair 
leaves  no  doubt  upon  the  intention;  *  *  *  personal  interest  made  him  lose  all  interest 
in  truth  and  justice.  His  diplomatic  instrument  came  thirty  days  too  late.  And,  besides, 
even  had  he  signed  it  earlier  our  sad  and  venal  enemy  would  not  have  been  able  to  get  any 
profit  out  of  it  Our  afTair  entered  into  all  the  cases  reserved,  and  there  is  not  a  single  one 
of  our  grievances  which  is  outside  the  provision  of  Article  V,  as  one  may  be  convinced  bv  the 
study  of  our  exposé  of  facts. 

On  page  559  Fabiani  says  : 

We  believe  that  we  have  sufficiently  demonstrated  in  our  general  exposé  that  whether  by 
'^faits  du  prince"  or  by  insurmountable  obstacles  opposed  l\v  the  judges  and  the  public 
power  to  the  execution  of  our  sentences  or  by  the  successive  denials  of  justice  or  by  the 
numerous  acts  contrary  to  the  right  of  nations,  the  responsibility  of  Venezuela  finds  itself 
directly  engaged.  There  can  be  no  divergences  upon  the  extent  of  the  power  of  the  arbi- 
trator in  respect  to  all  that  which  has  reference  to  the  appreciation  of  the  cucumstances  and 
of  the  facts  which  ought  to  determine  his  conviction  in  favor  of  one  or  the  other  party.  In 
that  which  concerns  us  we  recognize  this  .sovereign  faculty,  submitting  ourselves  without 
mental  reservations  to  the  intelligence,  the  prudence,  and  the  conscience  of  our  judge.  We 
have  full  faith  in  the  justice  of  our  cause,  in  the  reality  and  exactness  of  the  facts  which  we 
have  maintained,  but  we  shall  hold  for  true  and  just  that  wiiich  the  judge  shall  recognize  as 
true  and  just. 

S.  Doc.  533,  59-1 9 


130  FAHIANl    CASK. 

We  leave,  then,  to  the  arbitrator  to  consider  the  facts  which  are  submitted  to  him.  accord- 
ing to  the  hght  of  reason  and  justice,  aided  by  the  knowledge  of  the  right  and  general 
duties  of  administration  which  his  long  practice  in  puhhc  or  international  affairs  has  given 
him.  He  knows  that  in  virtue  of  principles  admitted  hy  díKtrine  and  jurisprudence  of  all 
people  bi^  must  in  such  a  matter  move  in  the  plenitude  of  the  independence  of  the  judge  who 
conforms   unly   to   his  conscience. 

In  anotlicr  paTt  he  says: 

This  part  of  our  work  being  exclusively  reserved  for  juridical  development  we  are  forbid- 
den (rom  entering  into  a  discus.sion  oreven  an  indication  of  figures.  We  place  the  principles; 
if  the  arbitrator  accepts  them  his  experience  and  his  proud  intelligence  in  affairs  will  .suggest 
to  him  the  application  which  he  ought  to  make  to  the  different  points  of  our  pecuniary  claim. 

On  page  575  of  his  exposé  Fabiani  says: 

It  will  belong  to  the  arbitrator  to  extend  his  judgment  upon  what  .shall  appear  to  him 
legitimate  or  illegitimate,  just  or  excessive,  in  the  claims  which  we  produce.  *  *  *  Hjs 
intelligence,  his  prudence,  his  conscience  will  be  the  most  sure  guide  for  him,  a  guide  formally 
provided  for  and  authorized  by  the  legislation  of  the  two  countries. 

We  know  well  that  the  part\-  of  which  we  demand  the  damages  and  interest  will  endeavor 
to  diminish  the  amount  of  them.  We  see  no  inconvenience  in  accepting  the  discussion.  We 
are,  on  the  contrary,  pursuaded  that  in  going  to  the  depths  of  things  we  shall  win  ground 
instead  of  losing  it.  The  essential  thing  was  to  localize  this  discussion,  to  avoid  theoretical 
controversies  on  the  kind  of  damage,  to  prescribe  in  this  affair  at  the  beginning  a  distinction 
between  direct  and  indirect  damages,  and  to  constrain  the  adverse  party  to  confine  itself 
exclusively  to  proving  the  exaggeration  of  our  demand.  It  dt)es  not  enter  into  our  intention 
to  examine  here  the  different  points  of  our  claim.  We  have  made  in  this  regard  a  .separate 
work,  which  will  come  before  the  eyes  of  the  arbitrator.  No  figures  ought  to  disturb  a  dis- 
cussion of  right  already  too  long  and  which  we  are  in  haste  to  terminate.  It  is  evident  that 
if  the  responsibility  of  Venezuela  he  retained  no  doubt  could  be  raised  as  to  the  absolute  legiti- 
macy of  our  claims  in  that  which  concerns  the  liquidation  of  our  .sentences  in  (he  sums  of 
which  the  instance  formed  before  the  French  tribunals  ought  to  a.ssure  the  recovery.  *  *  * 
The  principle  of  the  responsibility  once  admitted  it  will  belong  to  the  arbitrator  to  scrutinize, 
to  analyze  our  claims  upon  these  three  points  and  to  retain  only  the  losses  or  the  damages 
which  shall  appear  to  be  justified. 

On  page  794  of  his  exposé  Fabiani  says: 

The  arbitrator  has  the  right  of  sovereign  appreciation.  Wc  do  not  suppose  that  this  prin- 
ciple can  be  contested.  Without  doubt  an  impartial  and  intelligent  judge  admits  only  that 
which  appears  to  him  legitimate;  he  i ejects  the  damages  which  in  his  opinion  have  not  a 
direct  lien  with  the  incriminating  facts. 

The  intervention  of  France  on  behalf  of  Fabiani  began  not  long  after 
the  treaty  of  1885,  and  the  first  reference  which  is  of  importance,  per- 
haps, contains  tlie  following  statement  by  tlu>  French  (íoveriimcnt  in 
regard  to  its  claims  for  indemnification  on  account  of  Fabiani,  addressed 
by  the  French  legation  in  Carneas  to  the  \\Miezuelan  (lovcrnnient .  on 
August  3,  1SS7: 

It  is  the  opmion  of  llic  l-'iciicii  (ioxciiinuMit  tliiil  llic  iii<lc;niulv  miisl  cinbrace,  at  least 
in  the  first  place,  the  amount  of  the  sum,  both  piiiicipul  and  nil  crest,  the  collection  of  which 
would  have  insured  (he  execution  of  the  senlence  in  due  form  and  proper  (ime,  In'sides  the 
restitutions  ordered  by  the  judges,  aiiiouiidiig  to  about  1,  .iOO.tKM)  francs,  and,  m  the  .second 
place,  damages  and  mteicst,  the  amount  of  which  is  to  l>e  discus-sed,  for  the  wrongs  done 
to  Fabiani  in  his  crcdii  and  in  liis  i)usine.ss. 


OPINION    OF    UMPIRE.  131 

As  regards  his  other  pretensions,  a  sc-arrliiiisi  invest ifjat ¡on  and  discussion  should  determine 
how  far  tlifiv  aro  well  founded. 

Perhaps  the  first  oxj)!!  it  roforcnce  thereto  on  the  part  of  Venezuela 
is  found  in  the  letter  of  Gen.  Guzman  Blanco  to  liis  Government,  of 
date  November  14,  1889,  in  which,  after  referrin<i  to  other  matters 
with  which  he  had  been  employed  in  his  ollice  as  plenipotentiary, 
lie  sa3's: 

In  that  which  has  rei'oronco  to  tlio  Fahiani  claim,  witli  wliicli  the  (iovornincnt  has 
char<ipd  ine  ipccntly,  I  have  l)een  able  to  do  nothing  to  the  day  of  my  resignation,  because 
I  had  not  yet  received  the  information  which  is  necessary  to  the  defense  of  our  rights.  The 
point  is  so  grave  that  it  implies  almost  the  annulment  of  the  treaty  of  ]HHü.  The  French 
Government  demands  that  Fahiani  he  indemnified  for  something  which  remains  due  to 
liim  from  his  father-in-hiw,  Roncayolo,  in  the  ii()nidation  of  personal  affairs  in  which  they 
were  associated.  Ilavimj  opened  thus  the  breach  in  the  treaty,  we  sliall  lose  all  the  ¡irogres-s 
which  we  have  made  with  it. 

By  his  statement  that  the  point  is  so  j^rave  that  it  almost  implies 
the  annulment  of  the  treaty  of  1885,  and  by  the  further  statement 
that— 

a  breach  being  thus  opened  in  the  treaty,  we  shall  lose  all  the  progress  which  we  have  made 
with  it- 
it   is   quite   evident   that   the   claims   presented   covered   more   than 
denials  of  justice  as  understood  by  him,  because  these  were  recognized 
in  the  treaty  referred  to. 

Reference  to  this  claim  uQxt  appears  in  the  correspondence  between 
the  two  Governments,  beo^inning  December  31,  1889,  and  continuing 
to  August  14,  1890,  which  is  set  out  in  the  additional  memorandum 
of  the  honorable  commissioner  for  Venezuela,  accompanying  his 
opinion  to  the  umpire,  from  which  it  is  learned  that  the  Government 
of  France  had  particular  interest  to  settle  the  claim  ;  that — 

my  Government  would  see,  in  the  manifestation  of  more  favorable  dispositions  as  regard 
said  rlaim,  the  clearest  evidence  of  the  desire  of  the  eminent  President  of  the  Republic  of 
Venezuela  and  of  yourself  to  establish  between  the  two  countries  a  cordiality  toward 
which  all  my  efforts  are  bent. 

This  is  from  a  communication  from  His  Excellency,  Mr.  Blanchard 
de  Farjes,  minister  of  France  in  (Caracas,  to  Mr.  P.  Cassanova,  min- 
ister of  foreign  relations  for  A^enezuela,  of  date  December  31,  1889. 
It  is  further  learned,  from  a  study  of  the  correspondence  referred  to, 
that  France  proposed  arbitration;  that  Venezuela  declared  to  France 
that  it  rejected  the  Fabiani  claim  from  its  origin,  but  that  the  President 
was  desirous  of  exercising  all  efforts  in  behalf  of  the  desired  good  har- 
mony between  both  countries,  and  therefore  accepted  the  proposal  to 
arbitrate,  in  principle,  providing  the  umpire  be  one  of  the  Presidents  of 
the  South  American  Republics  and  that  the  (question  to  be  decided 
be — 

if  this  is  the  case  provided  for  in  .\rticle  V  of  the  F'rench-Wnezuelan  convention  of  Novem- 
ber 26,  1885,  and  that,  in  case  Venezuela  should  be  condemned  to  pay  any  indeinnilication, 


132  FABIANI    CASE. 

in  view  of  the  legal  proofs  adduced  in  favor  of  the  claimant,  *  *  *  such  indemnity  to 
be  paid  in  3  per  cent  bonds  of  tlie  diplomatic  debt. 

Subsequently  the  President  receded  from  liis  requirement  that  the 
arl)itrat()r  be  a  President  of  the  Latin-American  Kej)ubhcs.  France 
asked  that  the  award  of  the  umpire  deal  only  with  the  amount  of 
indemnity  to  be  fixed  for  M.  Fabiani;  in  other  words,  that  \'enezuela 
concede  the  rio^ht  to  some  indemnity,  and  urged  upon  \'enezuela, 
inferentially,  that  by  her  refusing  to  consent  to  this  proposition  Vene- 
zuela was  perj)etuatino;  an  element  of  dissension  between  the  two 
countries.  This  was  the  status  in  May,  1890.  In  July  of  the  same 
year  the  minister  of  Venezuela  in  France  informed  the  minister  of 
foreign  relations  in  Venezuela  as  follows: 

Consequent!}',  for  greater  clarity  and  to  prevent  M.  Fabiani  from  misconstruing  the  agree- 
ment, thus  creating  new  difficulties,  I  told  the  minister  (M.  Ribot)  that  I  was  going  to  inform 
the  Venezuelan  Government  of  the  agreement  precisely  in  the  following  language: 

"That  the  French  Ciovernmcnt  is  willing  to  accept  that  the  question  relative  to  M .  Fahiani 
be  submitted  to  the  President  of  the  Federal  Council  of  Switzerland  as  arbitro  juriíi,  first, 
to  decide  if  this  be  the  case  provided  for  in  Article  V  of  tJie  Franco-Venezuelan  convention 
of  November  26,  1885,  and,  second,  should  the  umpire  decide  that  such  is  the  cas(>  provided 
for  in  Article  V,  then  tlie  umpire  is  to_^.r  the  fium  that  innst  be  paid  to  M .  Fabiani  in  the  3 
per  cent  bonds  of  the  diplomatic  debt.  I  liave  discussed  the  matter  with  the  director  of 
the  cabinet,  who  has  told  me  that,  although  the  French  Government  agrees  to  the  substance 
of  the  two  points  mentioned,  it  is  not  desired  that  the}'  .should  be  stated  in  such  terms, 
because  these  would  to  a  certain  extent  be  little  satisfactory  to  the  French  Government, 
V)hich  has  decidedly  supported  M .  Fabiani's  claim,  entering  it  energeticalbf  through  diplomatic 
channels."  t 

It  will  be  especially  noted  that,  according  to  this  communication, 
France  agreed  in  substance  to  the  two  propositions  as  stated,  but 
opposed  their  being  submitted  in  the  language  suggested. 

August  12,  1890,  the  minister  of  France  at  Caracas  forwarded  to  the 
minister  of  foreign  relations  for  Venezuela  a  draft  of  the  protocol — 

to  serve  as  the  basis  of  the  arbitration  already  agreed  u|>on  "  in  principle  "  between  the  Vene- 
zuelan and  French  Governments — 

which  draft,  in  the  language  chosen  by  France,  the  umpire  is  assured 
by  the  honorable  commissioner  for  Venezuela,  is  Articles  I  and  II  of 
the  convention  of  February  24,  1891,  as  finally  accepted  by  the  two 
Governments. 

Having  thus  brought  iii)on  the  record  the  matters  essential  to  the 
(levelo])ment  of  this  claim,  it  is  now  ready  to  be  considered  in  all  its 
bearings  for  the  final  determination  of  the  umpire  upon  its  merits. 

In  the  judgment  of  the  umpire,  the  case  may  properly  turn  upon  the 
answer  to  be  given  the  in(|uiry.  Was  it  the  intent  and  piu'|)ose  of  the 
high  contracting  j)arties,  in  tlM'ir  agreement  of  Fchriiary  24,  1S91,  by 
and  through  its  terms  to  submit  to  tiie  honora  hie  arh  trator  of  Uerne 
the  ent:r(>  Fabiani  controversy^ 

When  France  interveiuMl  in  hchalf  of  l.(>r  n.it  Onal.  t  (>  Liims  (  f 
Fabiani  were  no  longer  iii<ii\i(lual  ami  |)ri\al!'     l.iiin-;  they  became 


OPINION    OF    UMPIRi:.  13S 

national.  The  right  to  intervene  exists  in  the  indignity  to  France 
through  her  national.  Thencefon^ard  it  is  national  interests,  not 
private  interests,  that  are  to  be  safeguarded.  It  is  the  national  honor 
which  is  to  be  sustained.  It  is  the  national  welfare  also  which  must 
be  considered.  In  protecting  Fabiani  and  his  interests  the  general 
welfare  must  be  kept  in  the  foreground.  To  the  extent  that  his 
interests  and  the  common  welfare  of  France  are  in  accord  his  par- 
ticular claims  can  be  pressed,  but  no  further.  If  at  any  time  the  gen- 
eral good  of  France  requires  a  surrender  of  all  liis  claims,  such  sur- 
render it  is  expected  France  will  make,  and  after  that  if  Fabiani  has  a 
claim  it  is  against  his  own  Government,  not  against  Venezuela.  From 
the  time  her  intervention  began  it  was  undoubtedly  the  constant  pur- 
pose of  France  to  remove  as  quickl}'  and  as  eifectually  as  possible  this 
occasion  of  international  dissension.  It  is  not  to  be  believed  that 
France  would  consent  to  submit  to  arbitration  a  part  only  of  a 
national's  claim,  leaving  large  and  important  portions  of  it  undisposed 
of  and  to  be  still  matters  of  international  intervention.  Nothing, 
nationally,  is  gained  thereby.  The  dignity  of  the  tribunal  thus 
invoked,  the  eminent  character  of  the  parties  litigant,  the  importance 
to  these  countries,  greater  than  any  possible  interests  of  the  national, 
that  peace  and  harmony  be  the  assured  result  of  their  action — all  these 
considerations  forbid  the  contemplation  even  of  such  a  thought. 
Such  is  the  approach  to  this  question  through  the  medium  of  general 
considerations.  When  view  is  had  of  this  particular  contention,  the 
parties  and  the  protocol,  there  is  added  light.  Both  of  the  high 
contracting  parties  affirm  it  to  be  their  purpose  to  close  the  contro- 
versy by  the  arbitration.  The  protocol  in  effect  so  states.  As  it 
seems  to  the  umpire,  the  honorable  arbitrator  so  understood  the 
scope,  purpose,  and  intent  of  the  protocol.  The  text  of  his  award 
charged  him  with  the  duty — 

first,  to  decide  whether,  according  to  the  laws  of  Venezuela,  the  general  principles  of  the  law 
of  nations,  and  the  convention  in  force  between  the  two  contracting  powers,  the  Venezuelan 
Government  is  responsible  for  the  damages  which  M.  Fabiani  claims  he  sustained  through 
denial  of  justice. 

This  duty  was  placed  upon  the  honorable  arbitrator  for  one  of  two 
reasons — either  that  his  determination  might  end  the  controversy  or 
simply  as  an  academic  proposition.  The  latter  reason  needs  only  to 
be  stated  to  be  denied. 

It  is  also  impossible  for  the  umpire  to  accredit  the  two  nations  with 
the  purpose  and  intentto  consider  such  of  the  claims  as  the  honorable 
arbitrator  fails  to  recognize  responsibility  for  in  Venezuela  as  simply 
eliminated,  subtracted,  and  reserved  from  the  effect  of  the  protocol, 
to  remain  as  vital  claims  in  the  hands  of  France  as  a  contiauing 
cause  of  discussion  and  dissension  between  the  two  Governments,  or 
to  believe  that  Venezuela  should  have  consented  to  arbitrate  these 


134  FABIANI    CASE, 

points  of  différence,  knowint;  that  when  the  award  was  made  all  of 
Fabiani's  (  laims  not  held  to  be  Avell  founded  were  to  be  pending; 
against  her;  knowing  that  for  such  as  were  held  to  be  denials  of  justice 
she  must  make  reparation  tlien  and  for  all  such  as  were  not  so  held  she 
must  oppose,  or  pay,  or  arbitrate  at  some  later  time. 

It  is  impossible  for  the  umpire  to  appreciate  the  reason  for  the 
prolonged  diplomatic  c ontrovcrsy  over  the  terms  of  the  protocol,  the 
anxiety  of  France,  on  the  one  hand,  that  Venezuela  should  admit  her 
liability  in  principle  and  arbitrate  only  the  damages  to  be  assessed, 
and,  on  the  other  hand,  the  tenacity  with  which  Venezuela  clung  to 
her  earl}'  offer  to  sul)mit  lirst  this  (¡uestion — 

if  this  is  tiie  case  provided  for  in  Article  V  of  the  Krench-Venezuelan  convention  of  Novem- 
ber 26,  1885— 

had  either  of  these  Governments  understood  that  the  arbitration  pro- 
posed was  only  a  preliminary  skirmish  to  feel  the  enemy's  lines  in 
order  to  prepare  the  way  for  the  real  battle  which  was  to  come  after, 
or  if  both  these  Governments  had  not  been  controlled  by  a  settled 
conviction  that  the  award  to  be  rendered  was  the  end  of  the  Fabiani 
controversy. 

It  can  not  be  gainsaid  that  if  the  honorable  arbitrator  of  Berne  had 
accepted  as  correct  the  full  contention  of  France  before  him  he  would 
have  amerced  the  Government  of  Venezuela  in  the  sum  of  46,994,563. 1 7 
francs.  This  was  her  hazard  when  she  trusted  her  cause  to  the  arbi- 
trator. If  such  had  been  his  award,  there  was  for  Wnezuela  no 
redress.  It  can  not  be  claimed  that  if  the  honorable  arbitrator  had 
included  every  item  to  the  extent  demanded  that  Venezuela  had  relief 
before  any  tribunal  or  that  for  her  there  coidd  have  been  by  any  tri- 
bunal subtracted  from  the  sum  total  a  single  figure  or  a  single  centime. 
If  the  present  contention  of  Fabiani  is  correct,  that  there  is  a  relief  for 
him  before  this  tribunal,  then  the  respondent  Government  in  an  arbi- 
tration takes  a  hazard  peculiar  to  itself  of  paying  the  award  to  the 
extent  of  the  entire  demand  of  the  claimant  Government,  if  such  be 
the  award,  or  a  part  thereof  if  successful  in  preventing  an  award  for 
all,  and  then  resisting  at  some  later  day  or  paying  or  arbitrating  such 
elements  of  the  claims  as  it  had  been  successful  in  opposing  beft)re  the 
first  tribunal;  while  the  claimant  Government  enjoys  the  privilege, 
peculiar  to  itself  of  consenting  to  such  restrictions  in  the  protocol 
as  it  can  not  avoid  if  it  is  to  obtain  arbitration,  and  later  presenting 
to  a  tribunal  not  hampered  by  such  restrictions  the  elements  of  its 
claim  refused,  because  of  the  restrictions  in  the  protocol  at  the  first 
hearing. 

Jf  the  judgment  of  the  honorable  arbitrator  of  Berne  had  been  that 
under  the  protocol  the  Ciovernment  of  \  enezuela  had  no  responsi- 
bility, would  it  have  resulted  that  all  the  claims  of  Fabiani  were  left 
unsettled  by  his  decision  and  were  restored  to  their  ])rimal  state  of 


OPINION    OE^    UMPIRE.  135 

existing  claims  fur  which  tiio  Governincnt  of  France  could  intervene? 
If  not,  then  what  claims  would  be  held  to  be  settled  and  what  still 
pending?  If  the  position  of  Fabiani  is  correct,  which  is  the  better 
result  for  the  respondent  Government  in  an  arbitration,  to  defend  suc- 
cessñdly  in  part  or  in  all  or  to  lose  in  all  or  in  part?  Rather,  which 
makes  the  respondent  Government  suffer  most  and  longest,  since  in 
such  a  case  there  is  for  the  defendant  Government  no  surcease? 

These  inquiries  have  value  only  in  the  fact  that  by  considering  them 
one  is  irresistibly  impelled  to  the  sane  and  safe  conclusion  that,  in 
every  international  controversy  of  like  import  with  this,  the  two  Gov- 
ernments honestly  and  carefidly  seek  a  common  meeting  point,  which 
is  to  be  gaineil  usually,  as  in  this  case,  by  mutual  concession  and 
mutual  remission  of  matters  which  can  yield,  and,  when  that  common 
ground  of  consent  is  reached,  to  submit  it  as  the  whole  controversy;  or 
as  being  all  tliat  hath  parties  will  admit  is  the  controverted  question,  and 
that  this  mutual  point  of  agreement  is  as  much  a  matter  of  agreement 
between  the  high  contracting  parties  as  is  the  covenant  to  arbitrate 
itself  is  an  integral  part  of  that  covenant  gives  it  its  final  character  and 
provides  for  it  its  name — which  is  compromise.  The  process  by  which 
this  agreement  is  reached  being  concessions  by  each,  each  concession 
cancels  the  other,  so  that,  outside  the  protocol,  of  the  original  con- 
tention there  is  left  nothing.  All  of  the  original  controversy  is  found 
finally  resting  in  the  protocol  or  in  oblivion.  Thus,  wdien  Vene- 
zuela and  France  first  compared  their  views  on  the  Fabiani  matter, 
France  claimed  that  there  was  uncjuestioned  liability  on  the  part  of 
Venezuela,  and  during  the  discussion  named  in  general,  at  least,  the 
grounds  thereof,  and  the  amount,  in  part,  at  least,  that  she  should 
receive.  Venezuela  denied  all  liability  in  every  particular.  As  they 
pursued  their  efi'orts  to  reach  an  agreement  France  admitted  that 
there  might  be  a  question  as  to  amounts,  but  no  question  as  to  the  fact 
of  responsibility,  and  proffered  to  Venezuela  arbitration  of  the  amount. 
Venezuela  consented  to  arl)itrate,  provided  that  the  arbitrator  might 
be  a  President  of  a  South  American  Republic,  and  provided  also  that 
the  question  of  liability  be  the  first  question  determined. 

Later  Venezuela  tendered  a  recession  from  her  demand  that  the  arbi- 
trator must  be  the  Preisident  of  a  South  American  Republic  and  con- 
sented that  the  President  of  the  Swiss  Federation  might  take  charge 
of  such  arbitration,  but  insisted  that  the  arbitrator  be  asked  to  decide, 
first,  if  this  is  the  case  provided  for  in  Article  V  of  the  Frcnch-\'ene- 
zuelan  convention  of  November  26,  1885.  Finding  that  arbitration 
could  only  be  liad  by  conceding  this  last  point  France  made  the  conces- 
sion in  principle,  but  asked  that  it  be  not  thus  worried  and  in  the  end 
submitted  for  the  acceptance  of  the  Government  of  Venezuela  the 
compromise  substantially  as  it  was  when  it  became  the  treaty  between 
them.     Nothing  on  either  side  of  the  claims  thus  conceded  survived. 


1H6  FABIANI    CASE. 

They  were  all  mutually  agreed  to  l)e  perpetually  abandoned.  It 
matters  not  tluit  eacli  of  the  a<;reein<i  ])iirtie.s  believes  tliat  much,  per- 
liups  all,  of  its  early  contention  is  still  left,  and  is  comforted  in  the 
thoiijijht  that  nothing  has  been,  in  fact,  conceded,  and  that  all  really 
exists  under  the  terms  ao;reed  upon.  This,  however,  remains  certain 
that  they  have  agreed  to  submit  the  whole  question  to  the  arbitrator. 
They  may  contend  before  him,  on  the  one  hand,  that  all  is  included, 
and,  on  the  oth.er  hand,  that  nothing  can  be  foimd  imder  its  terms. 
Concerning  the  meaning,  form,  and  effect  of  their  agreement,  they  may 
essentially  and  antipodally  disagree,  but  that  they  have  agreed  that 
their  contention  is  all  included  ivithin  the  terms  of  the  protocol,  is  not, 
and  never  can  he,  a  matter  of  disagreement.  That  the  compromise  has 
been  made  in  order  that  the  arbitrator  shall  make  a  final  and  con- 
clusive award  upon  the  whole  of  the  original  con  trovers)/  "not  buried 
in  mutual  concession,"  is  the  most  solemn  covenant  of  all. 

If  France  had  made  the  award  at  Berne  the  subject  of  diplomatic 
protest  before  the  convention  of  February  24,  1902,  or,  in  connection 
with  that  event,  had  submitted  its  grievance,  there  would  have  been 
an  opportunity  for  Venezuela  to  make  answer  through  the  same  chan- 
nels. If,  after  such  diplomatic  interchange  of  opinion,  it  had  seemed 
best  to  resubmit  the  question  which  had  once  been  heard,  or  any  part 
thereof,  it  would  come  before  the  tribunal  then  constituted  to  hear  it, 
with  the  knowledge  on  its  part  that  the  hearing  had  been  consented  tu 
by  both  of  the  Governments  involved  therein.  This  protest  it  did  not 
make.  There  is  nothing  to  indicate  that  it  desired  so  to  do,  or  had 
aught  to  say  why  it  should  not  accept  as  final  and  conclusive  tlie  award 
of  the  honorable  arbitrator  of  Berne,  unless  it  be  found  in  the  fact  that 
Fabiani  is  permitted  to  present  his  claims,  in  the  manner  he  has  pre- 
sented them,  })efore  this  Mixed  Commission.  So  far  as  the  umpire  is 
advised  the  Government  of  France  has  not  assumed  responsibilit}'  for, 
or  attempted  to  dictate  as  to,  the  claims  which  might  come  before 
this  tril)unal.  So  far  as  he  is  advised,  the  actual  relation  of  France  is 
found  in  the  fact  that  it  has  sought  and  obtained  a  tribunal  where  its 
nationals  may  be  heard,  but  has  not  passed  at  all  upon  the  claims, 
sought  to  refuse,  or  to  limit,  the  presence  of  any  who  considered  that 
they  had  an  international  grievance  for  which  the  Government  of 
Venezuela  had  responsibility.  It  is  believed  by  the  umpire  that  this 
accounts  for  the  presence  of  this  claim  before  this  tribunal.  The  large 
intelligence,  the  high  honor,  the  scrupulous  integrity,  the  sensitive  per- 
ceptions of  the  diplomats  of  France  are  assurances  to  the  umpire  either 
tliat  they  have  carefully  and  purj)osely  presented  this  claim,  regarding 
it  as  entirely  outside  of  the  attributes  and  relations  given  it  by  the 
umpire,  or  that  it  is  wholly  the  work  of  an  individual,  who  had  pre- 
sented his  cljiini  on  his  own  initiative,  because  he  feels  that  in  the  deci- 
sion at  Berne  he  sulfered  a  too  serious  diminution  in  his  honest  (ianiaires 


OPINION    OF    UMPIRE.  1S7 

by  the  application  of  the  rule  established  by  the  honorable  arbitrator, 
and  who  hopes  that  there  may  be  a  chance  for  revision  and  reimburse- 
ment before  the  present  tribunal. 

The  umpire  holds  further  that  the  honorable  Governments,  in  estab- 
lishing the  standard  of  measurement  which  was  to  be  used  by  the  hon- 
orable arbitrator  of  Berne  in  fixing  the  responsibility  of  the  respondent 
Government,  established  at  the  same  time  the  measurewhich,  when  ap- 
plied by  the  arbitrator,  was  to  determine  alike  the  extent  and  the  limit 
of  Fabiani's  claims.  When,  therefore,  the  honorable  arbitrator  made  use 
of  this  standard,  so  provided  him,  the  claims  of  Fabiani,  by  their  own 
weight,  fell  within  or  without  the  line  of  demarkation  so  drawn.  The 
honorable  arbitrator,  on  his  own  initiative,  eliminated  nothing,  sub- 
tracted nothing,  from  these  claims;  there  was  left  for  him  nothing  but 
first  to  settle  the  meaning  of  the  protocol,  and  then  to  observe  its 
effect,  and  to  point  out  which  of  the  claims  came  within,  and  which 
without,  the  action  of  the  rule  agreed  upon  and  prescribed  to  him  by 
the  two  honorable  Governments.  In  other  words,  when  he  seems  to 
eliminate  or  to  Subtract  from  the  claims  of  Fabiani,  or  mayhap,  so 
states  in  his  arbitral  decision,  he  is  in  fact  simply  pointing  out  and 
designating  the  different  elements  of  the  Fabiani  controversy,  which, 
in  effect,  the  high  contracting  parties  had  agreed  to  eliminate  and 
subtract  in  order  to  reach  an  agreement  that  permitted  the  protocol 
and  the  arbitration.  The  moment  the  honorable  arbitrator  of  Berne 
settles  the  pivotal  question  of  the  protocol,  by  defining  the  term 
"denial  of  justice,"  around  which  the  storm  clouds  of  conflict  quickly 
gathered  and  the  battle  was  fiercely  waged,  these  claims  fell  into  the 
lethe  prepared  for  all  such  by  the  two  Governments  when  they  agreed 
to  and  accepted  the  protocol  of  February  24,  1891. 

It  is  also  true  that  this  was  not  the  beginning  of  such  eliminations 
and  subtractions  by  and  between  these  honorable  Governments. 
They  began  November  26,  1885,  in  the  solemn  compact  then  made 
between  them,  and  thenceforward  these  nations  rested  upon  their 
valued  agreement  to  include  within  their  diplomatic  cognizance  and 
intervention  the  same  matters  only  as  are  accepted  in  the  j)rotocol 
of  1891,  which  substantially,  even  emphatically,  reaffirms  this  pre- 
vious convention  and  applies  it  to  the  concrete  case  in  hand,  hence 
if  there  were  any  difficulty  in  imderstanding  the  protocol  when 
standing  alone,  by  the  light  of  the  treaty  of  1885,  such  difficulties  are 
all  removed,  and  one  is  permitted  to  pas§  within  the  veil  and  catch 
the  genuine  spirit  which  inspired  it,  as  we  hear  the  thoughtfid  pleni- 
potentiaries declare  on  the  part  of  their  respective  Governments  that 
it  is  done — 

in  order  to  avoid  in  the  future  everythiJig  which  might  interfere  %vith  thcir/ri>n</Z!/  relations. 

What  they  agreed  to  in  order  to  avoid  in  the  future  a  disturbance 
of  friendly  relations  was  done  February  24,  1891,  in  order  to  avoid 


138  FABIANI    CASE. 

and  to  roinovo  tho  verv  thing,  which,  until  romoved,  did  disturb  tlie 
friendly  relations  of  the  two  Governments;  and  in  the  agreement 
wliich  was  merged  in  the  protocol  such  concessions  as  were  made 
on  the  part  of  l)oth  Governments  were  the  |)rice  which  each  paid  for 
the  restoration  and  continuance  of  friendly  relations,  so  essential  to 
the  highest  welfare  of  l)oth  nations.  So  far  as  these  concessions 
affected  the  pecuniary  interests  of  Fabiani  they  were  the  especial 
tribute  required  of  him  by  his  Government  to  conserve  its  general 
good.  How  great  was  tliis  price  was  not  known  until  the  judgment 
of  the  arbitrator  was  obtained,  defining  the  inclusiveness  of  the  stand- 
ard agreed  upon.  WIkii  that  was  known,  in  so  far.  if  at  all,  as  tliis 
limited  his  claims  witliin  what  he  could  have  obtained  under  an  unre- 
stricted submission,  the  draft  had  been  made  upon  him  in  the  interest 
of  the  common  weal  of  his  nation,  wliich  draft  it  was  his  patriotic  duty 
to  honor,  and  tliereafterwards,  toward  the  respondent  Government, 
to  seek  no  recourse. 

The  umjiire  may  be  permitted  at  this  time  to  refer  to  decisions  made 
in  the  courts  and  international  tribunals  and  to  the  opinion  of  Count 
Lewenhaupt  and  to  quote  from  the  reasons  given  for  the  judgments 
rendered  and  the  opinions  held,  the  subject-matter  being  similar  in 
many  aspects  to  the  present  case.  They  illustrate  and  support  the 
positions  taken  by  the  umpire  and  are,  in  liis  judgment,  ample  in  prin- 
ciple and  precedent. 

There  is  the  Machado  claim  before  the  mixed  commission  of  the 
United  States  of  America  and  Spain,  of  February  12,  1S71,  presented 
by  memorial  "in  1S71,  ])eing  No.  3  of  the  claims  before  said  commis- 
sion.    It  was  dismissed  for  want  of  prosecution  December  20,  1S73 — 

the  commission  reserviiifî  to  itself  the  rifjht  to  reinstate  the  said  case  on  motion  by  tiie  adv(v 
cato  for  the  United  States,  sufficient  causes  being  shown  in  support  thereof. 

In  1879  he  filed  another  memorial,  being  No.  129  upon  the  docket. 
March,  18S0,  the  advocate  for  Spain  moved  to  strike  it  from  the 
docket  on  the  ground  that  it  was  the  same  case  as  No.  3.  The  advocate 
for  the  United  States  contended  that  the  claim  was  different,  and 
claimed  that  the  motion  of  the  advocate  for  Spain  might  be  dismissed. 

The  arbitrators  being  unable  to  agree,  the  question  was  referred  to 
the  umpire,  Lewenhaupt,  who.  on  July  12,  1S80,  rendered  the  following 
decision  : 

The  umpire  is  of  opinion  f  liat  tlie  question  whether  case  No.  3  may  l)e  reopened  has  not  been 
referred;  that  the  (|uestion  whether  tliis  claim.  No.  129,  is  a  new  one  or  the  -same  a.s  No.  3 
does  not  depend  upon  whether  the  items  included  be  the  same  in  both  ca.ses,  but  the  test 
,is  whether  both  claims  are  founded  on  the  same  injury,  that  the  only  injury  on  which  claim 
No.  120  is  founded  is  the  seizure  of  a  certain  house:  thai  this  .same  injury  was  alleged  as 
one  of  the  foundations  for  claim  No.  '.i,  and  that  in  consequence  claim  No.  12i),  as  being  a 
part  of  an  old  claim,  can  not  be  presented  as  a  new  claim  in  a  new  particular.  For  these 
reasons  the  um|)ire  decides  that  this  {-asc,  No.  1211,  be  stricken  from  the  docket. 


OPINION    OF    UMPIRE.  139 

This  case  is  found  in  Moore's  Int.  Arb.  2193.  See  also  decisions 
similar  in  principle,  Danford  Knowlton  &  Co.,  and  Peter  V.  King  & 
Co.,  before  the  same  commission,  found  in  Moore's  Int.  Arb.  2193- 
2196.     See  Delgado  case,  :Moore  Int.  Arb.  2196. 

See  the  case  of  McLeod,  Moore  Int.  Arb.  2419. 

McLeod,  a  British  subject,  set  up  a  claim  against  the  United  States 
of  America  for  his  arrest  and  imprisonment  in  the  State  of  New  York 
on  a  charge  of  murder  committed  at  the  destruction  of  the  steamer 
Caroline  in  the  port  of  Schlosser  in  that  State  on  December  29,  1879. 
This  claim  was  presented  by  the  British  agent  to  the  commission  under 
the  convention  between  the  United  States  and  Great  Britain  on  Feb- 
ruary 8,  1853.  The  agent  of  the  United  States  maintained  that  the 
case  was  finally  settled  between  the  two  Governments  by  Lord  Ash- 
burton  and  Mr.  Webster  in  1842.  The  British  commission  thought 
that  the  adjustment  made  between  the  two  Governments  was  merely 
a  settlement  of  certain  national  grievances  and  that  any  claim  on  the 
part  of  McLeod  must  be  considered  as  one  of  the  imsettled  questions 
existing  at  the  date  of  the  convention  of  February  8,  1853.  Mr. 
Upham,  commissioner  for  the  United  States,  was  of  a  different  opin- 
ion, and,  among  other  things,  says  that  two  questions  arise  in  the  case: 

I.  Whether  the  settlement  made  by  the  Governments  precludes  our  jurisdiction  over 
the  claim  now  presented. 

II.  Whether,  independently  of  such  exception,  the  facts  show  a  ground  of  claim  against 
the  United  States. 

*  *  *  No  claims  can  be  sustained  before  us  except  tho.se  which  tlie  Governments 
can  rightly  prefer  for  our  consideration.  With  matters  settled  and  adjusted  between 
them,  we  have  nothing  to  do. 

A  settlement  by  the  Governments  of  the  ground  of  international  controversy  between 
them,  ipso  facto,  settles  any  claims  of  individuals  arising  under  such  controversies  against 
the  Government  of  the  other  country,  unless  they  are  especially  excepted,  as  each  Govern- 
ment by  so  doing  assumes,  as  principal,  the  adju.stment  of  the  claims  of  its  own  citizens 
and  becomes  itself  .solely  responsible  for  them.     *     *     * 

These  sulijects  of  difficulty  and  controversy  between  the  two  countries  were  thus  fully 
and  finally  adjusted,  so  that  the  able  and  patriotic  statesmen  by  whom  this  settlement  was 
effected  tmsted,  in  the  words  of  Lord  Ashburton,  "that  these  tnily  imfortunate  events 
might  thenceforth  be  buñed  in  oblivion.  "     *     *     * 

In  my  view,  the  entire  controversy,  with  all  its  incidents,  was  then  ended;  and  if  the  citizens 
of  either  Government  had  grievances  to  complain  of  they  could  have  redress  only  on  their 
own  governments,  who  had  acted  as  their  principals  and  taken  the  respoasibility  of  making 
the  whole  matter  an  international  aifair  and  had  adjusted  it  on  this  basis. 

The  umpire,  Mr.  Bates,  sustained  the  position  of  the  commissioner 
for  the  United  States  and  rejected  the  claim. 

John  Emile  Ilouard  was  arrested  in  Cuba  and  imprisoned  without 
right,  as  it  always  appeared.  Spain  voluntarily  released  Mr.  Houard 
and  restored  his  property  to  liim,  requesting  of  the  United  States,  as  a 
condition  of  the  pardon  and  restoration,  that  an  end  should  thereby 
be  put  to  all  discussion  concerning  this  case.     Tliis  proposition  was 


140  FABIANI    CASE, 

accepted  by  the  United  States.  Mr.  Houard  came  before  the  inter- 
national commission  between  the  I'nited  States  and  Spain  and 
claimed  damages  for  the  wrong  done  him  through  his  imprisonment 
and  the  consequences  naturally  flowing  therefrom.  The  umpire  made 
the  decision  as  follows  :  ^ 

The  umpire  docs  not  deem  it  consistent  with  the  characterof  his  office,  nor  required  by  the 
interests  of  either  party,  that  tiie  (luestions  involved  in  the  sentence,  thus  disposed  of  iiereto- 
fore  and  intended  to  Ix'  closed  l)y  conditional  pardon  «¡¡ranted  as  the  result  of  an  international 
agreement,  should  now  be  reopened.     (Moore's  Int.  Arb.,  2429). 

See  Bouts'  case,  Sir  Edw^ard  Thornton  umpire,  Moore's  Int.  Arb., 
2430. 

Illustrative  of  the  position  wliich  the  United  States  Government 
has  taken  in  reference  to  the  finality  and  conclusiveness  of  awards  by 
commissions  and  by  arbitration,  reference  m:.y  be  h..d  to  the  action 
of  that  Government  with  Mexico  under  the  convention  of  April  11, 
1839.  Under  said  commission  three  claims  were  rejectc!  by  the  com- 
missioners on  their  merits  and  four  on  the  ground  of  jiuMsciiction. 
The  umpire  rejected  five  claims  on  their  merits  t.nd  six  on  jurisdic- 
tional grounds.  After  the  termination  of  the  commission  tttomeys 
for  claimants  whose  demands  had  been  rejected  r  sked  tint  the  con- 
vention and  all  the  proceedings  under  it  be  decl.  I'ed  null  ^.nd  void, 
while  the  attorneys  for  the  more  fortunate  claimants  strongly  objected 
to  such  a  course. 

The  Government  of  the  United  States  determined  to  treat  as  final 
and  conclusive  the  decisions  that  had  already  been  rendered  t.nd  to 
enter  into  negotiations  for  the  adjustment  of  the  imfinished  business. 
Under  tliis  decision  there  was  a  new  claim  convention  of  November 
20,  1843,  which  by  its  first  article  provided  th.t  ;  11  cl,  ims  of  the  citi- 
zens of  Mexico  against  the  United  States  t-ud  all  ch.ims  of  citizens  of 
the  United  States  against  Mexico — 

which  for  whatever  cause  were  not  submitted  to  nor  considered  nor  rinally  decided  l)v  the 
commission  nor  by  the  arbiter —      (Moore's  Int.  Arb.,  p.  1249,  note,  i 

under  the  convention  of  1839  shoidd  be  referred  to  a  l)oard  of  four 
commissioners. 

Under  the  commission  of  1839,  wherein  it  was  agreed  that  the  deci- 
sion of  the  umpire  should  be  final  and  conclusive,  i;nd  wherein  the  United 
States  agreed  forever  to  exonerate  the  Mexican  (îovernment  froui  j\ny 
further  accountability  for  claims  which  woidd  either  !>(>  rejected  by 
the  board  or  by  the  arbitrator,  or  which,  being  :  llowed  by  either, 
should  \)i\  provided  for  by  the  s.id  Government  in  the  nuinner  b(>fore 
mentioned,  there  was  presented  the  claim  of  Manuel  de  Cala,  growing 
out  of  his  imprisonment  and  the  confiscation  of  his  vessel  and  cargo. 
The  American  coniiiii.ssioner  of  1S39  allowed  Só2,()()0,  the  Mexican 
commissioner  nothing,  the  uMi|)ire  $5,867.  It  w.  s  .  lleged  before  the 
commission  of  1849  thai  this  award  was  made  solel\-  on  account  of  tl\e 


OPINION    OF    UMPIRE.  141 

confiscation  of  the  vessel  and  the  imprisonment  of  de  Cala,  and  that 
the  value  of  the  cargo  was  by  some  unaccountable  oversight  wholly 
overlooked  by  the  umpire.     The  commission  ruled  against  it,  saying: 

This  board  has  no  means  of  knowing  upon  what  grounds  the  decision  of  tiic  umpire  was 
made,  nor  has  it  any  power  of  correcting  iiis  errors,  mistakes,  or  omissions,  even  if  there  was 
clear  evidence  of  the  existence  of  such  errors  or  omissions.  The  wliole  claim  of  de  Cala  was 
submitted  to  the  umpire,  and  in  his  decision  he  recapitulated  minutely  the  several  items 
allowed  by  the  American  commissioiiei-s,  and  immediately  .states  the  amount  for  which,  in 
his  opinion,  Mexico  should  bo  held  responsible.  *  *  *  The  board  is  of  opinion  that  the 
decision  of  the  innpire  was  final  and  conclusive,  and  that,  by  the  terms  of  the  convention  of 
1839,  Mexico  was  relea.sed  from  any  further  claim  or  liability  growing  out  of  the  transaction» 
upon  which  it  was  founded.     (Moore  Int.  Arb.,  1274). 

See  the  Leggett  (■.\se,  Moore  Int.  Arb.,  1276  et  seq. 
In  Moore  Int.  Arb.,  1408,  Sir  Frederick  Bruce  says: 

In  civil  courts  an  appeal  lies  to  a  superior  tribunal;  in  international  courts,  which  recog- 
nize no  superior  judge,  fresh  negotiations  are  opened,  and  a  fre.sh  commission  appointed,  to 
which  the  disputed  cases  are  referred.     *     *     * 

I  am  of  opinion  that  these  claims  must  be  submitted  de  novo  to  the  actual  commission, 
with  a  view  to  a  fresh  reexamination  and  decision  on  their  merits. 

Under  the  United  States  and  Venezuela  Claims  Commission  of  1868 
gross  frauds  were  alleged  to  be  perpetrated,  and  a  protest  of  the  Vene- 
zuelan Government  was  filed  with  the  Secretary  of  State  for  the  United 
States  of  America  February  12,  1869,  alleging  irregularity  of  the 
umpire  and  fraud  in  the  proceedings  and  findings.  After  careful 
inquiry  by  the  United  States  Government  it  was  found  that  there  had 
been  fraud.  The  decisions  were  rejected  and  a  new  commission  was 
formed  by  the  joint  action  of  both  countries  to  rehear  all  of  the  cases. 

Moore  Int.  Arb.,  1660-1675. 

Where  a  party,  with  full  knowledge  of  the  facts  on  which  he  relies  for  the  impeachment  of 
the  award,  has  nevertheless  accepted  and  executed  the  award,  it  will  not  be  set  aside  because 
of  the  objections  made  by  him.     (2  Am.  and  Eng.  Encj'cl.  of  Law,  789.) 

A  valid  award  creates  a  complete  obligation,  and  need  not  be  ratified  by  the  parties  in 
order  to  give  it  operative  force.     (Id.,  806.) 

But  where  an  award  is  voidable,  either  because  the  arbitrators  have  exceeded  their 
authority  or  because  all  matters  submitted  have  not  been  considered  by  them,  or  for  any 
other  reason,  the  parties  may  ratify  it  expressly  or  by  implication  arising  from  their  acts,  and 
after  such  ratification  they  will  be  estopped  from  objecting  to  it.     (Id.,  806.) 

The  acceptance  of  the  benefits  of  an  award,  as  accepting  the  performance  from  the  other 
party  to  the  submission  of  the  obligations  imposed  by  the  award,  is  a  ratification  and  estopa 
the  party  so  accepting  from  afterwards  denying  its  validit}-.     (Id.,  807,  note.) 

Acquiescence  in  an  award  has  the  effect  of  a  ratification.     (Id.,  807.) 

In  a  case  before  the  ^Supreme  Court  of  the  United  States  entitled 
United  States  ex  rel.  Lutzarda  Angarica  de  la  Rua,  executrix  of  Joaquin 
Garcia  de  Angarica,  deceased,  plaintiiT  in  error  v.  Thomas  F.  Bayard, 
Secretary  of  State  (127  U.S., 251  (L.  R.,  32,  150)),  there  appears,  in  the 
course  of  the  decision,  this  quotation  from  the  answer  of  the  Secretary 
of  State  for  the  United  States: 


142  FABIANI    CASE. 

And  this  respondent,  further  answering,  saith  that  the  said  petition  proceeds  uprn  a 
ground  which  wholly  ignores  certain  grave  international  elements  and  considerations  that 
entered  into  the  claim  of  the  petitioner's  testator  so  soon  as  the  Government  of  tlie  United 
States  began  and  assumed  to  urge  and  prosecute  the  same,  and  that  thenceforth  the  said 
claim  became,  in  contemplation  of  law,  subject  to  the  will  of  the  Government  of  the  United 
States  and  entirely  beyond  the  control  of  the  said  petitioner's  testator. 

On  July  4,  1868,  a  convention  wiiS  concluded  between  the  United 
States  of  America  and  Mexico  for  the  adjudication  of  claims  of  citizens 
of  either  country  upon  the  Government  of  the  other.  Article  II  of 
the  treaty  contains  this  clause: 

The  President  of  the  United  States  of  America  and  the  President  of  the  Mexican  Republic 
hereby  solemnly  and  sincerely  engage  to  consider  the  decision  of  the  commissioners  conjointly, 
or  of  the  umpire,  as  the  case  may  be,  as  absolutely  final  and  conclusive  upon  each  claim 
decided  upon  by  them  or  him,  respectively,  and  to  give  full  eifect  to  such  decisions  without 
any  objection,  evasion,  or  delay  whatsoever.     (15  Stat.  L.,  682.) 

And  also  in  Article  V  there  appeared  the  followino;: 

The  high  contracting  parties  agree  to  consider  the  result  of  the  proceedings  of  this  com- 
mission as  a  full,  perfect,  and  final  settlement  of  every  claim  upon  either  Government  arising 
out  of  any  transaction  of  a  date  prior  to  the  exchange  of  the  ratifications  of  the  present  con- 
vention; and  further  engage  that  every  such  claim,  whether  or  not  the  same  may  have  been 
presented  to  the  notice  of,  made,  preferred,  or  laid  before  the  said  commission,  shall  from 
and  after  the  conclusion  of  the  proceedings  of  the  said  commission,  be  considered  and  treated 
as  finally'  settled,  barred,  and  thenceforth  inadmissible.      (15  Stut.  L.  684.) 

This  was  a  case  of  petition  for  mandamus,  entitled  United  States  ex 
rel.  Sylvanus  C.  Bojniton,  plaintiff  in  error,  v,  James  G.  Blaine,  Secre- 
tary of  State.     (U.  S.  Sup.  Court  Reports,  139,  306;  L.  R.  35,  183.) 

The  payment  of  the  sum  awarded  had  been  withheld  by  the  Gov- 
ernment of  the  United  States  because  that  Mexico,  while  complying 
with  the  terms  of  the  award  and  paying  in  accordance  therewith,  had 
solemnly  protested  to  the  Government  of  the  United  States  that  delib- 
erate fraud  had  been  practiced  upon  the  commission  and  that  without 
it  there  would  have  been  no  award  against  Mexico  and  asking  that 
the  United  States  Government  consent  to  reopen  the  case  and  to  set 
aside  the  award.  This  petition  wr.s  brought  to  compel  the  Secretary 
of  State  to  make  payment  of  the  sums  due  to  the  relator,  notwith- 
st.,nding  the  situation  suggested. 

President  Ila3cs  caused  the  charges  of  fraud  to  be  investigated,  and 
Mr.  Evarts,  then  Secretary  of  State  and  a  profound  lawyer  and  emi- 
nent jurist,  made  a  carefid  examination  of  all  the  matters  concerned 
r.nd  submitted  bis  conclusions  to  the  President,  of  which  we  ([Uote  in 
p'lrt: 

That  neither  the  principles  of  public  law  nor  considerations  of  justice  and  e(|uity  required 
or  permitted,  as  between  the  United  States  and  .Nhwico,  that  the  award  siiould  l)e  opened 
and  the  cases  retried  l>efore  a  new  international  tribunal,  or  under  any  new  convention  or 
negotiation  respecting  the  same:  ♦  *  *  tjiat  the  honor  of  the  United  States  required 
that  these  two  cases  should  Iw  lurihcr  investigated  by  the  United  States  to  as<'ertain 
whether  this  Govcniiiieiit  had  i)ecii  made  the  means  of  enforcing  against  «  friendly  jniwer 


OPINION    OK    UMPIRE.  148 

claims  of  our  citizens  based  upon  or  exaj^iierulctl  l)y  fraud.  (139  U.  S.  pp.  306-32G;  L.  R. 
vol.  35  p.  186.) 

In  August,  1880,  Secretary  Evart.s — 

having  been  notified  through  the  Mexican  legation  of  the  intention  of  the  Mexican  Govern- 
ment to  commence  suits  to  impeach  and  set  aside  the  two  awards,  objected  to  such  a  pro- 
ceeding a.s  in  contradict 'wii  to  (he  whole  purpose  of  the  convention,  as  well  a.s  of  explicit 
provisions  thereof;  and  accordingly  no  further  steps  were  taken  in  that  direction.      (  Id.  ibid.) 

Chief  Justice  Fuller  delivered  the  {)pini()n  of  the  court,  and  we  (|Uote 
briefly  therefrom  : 

The  Government  assumed  the  responsibility  of  presenting  his  claim,  and  made  it  its  own  in 
seeking  redress  in  respect  to  it. 

The  Chief  Justice  makes  reference  to  Frelinghuysen  v.  Key  (110 
U.  S.,  63),  in  the  following  language: 

In  Frelinghuysen  f.  Key,  while  conceding  the  essential  value  of  international  arbitration 
to  be  dependent  upon  the  ceriainlij  and  finality  of  the  decision,  the  court  adjudged  that  this 
Government  need  not  lle.efore  close  its  doors  against  an  investigation  into  the  question 
whether  its  influence  had  been  lent  in  favor  of  a  fraudulent  claim.  It  was  held  that  no  appli- 
cable rule  was  so  rigid  as  not  to  be  sufficiently  flexible  to  do  justice,  and  that  the  extent  and 
character  of  any  obligation  to  individuals,  growing  out  of  a  treaty,  an  award,  and  the  receipt 
of  money  thereon,  were  necessarily  subject  to  such  modification  as  circumstances  might 
require. 

Cornelius  Comegys  and  Andrew  Pettit,  plaintiffs  in  error,  v.  Ambrose 
"\'asse,  defendant  in  error,  before  the  United  States  Supreme  Court, 
and  reported  in  volume  26,  page  193  (L.  R.  7,  108),  was  a  case  grow- 
ing out  of  the  award  of  commissioners  constituted  under  the  treaty  of 
the  United  States  of  America  with  Spain  on  the  22d  of  February',  1819. 
In  the  ninth  article  of  the  treaty  it  provides  that  the  high  contracting 
parties — 

reciprocally  renounce  all  claims  for  damages  or  injuries  which  they,  themselves,  as  well  as 
their  respective  citizens  and  subjects,  may  have  suffered  until  the  time  of  signing  of  this 
treaty.     (8  Stat.  L.  258.) 

and  they  then  proceed  to  enumerate  in  separate  clauses  the  injuries  to 
which  the  renunciation  extends. 

The  eleventh  article  provides  that  the  United  States,  exonerating 
Spain  from  all  demands  in  ftiture  on  account  of  the  claims  of  their  citi- 
zens to  which  these  renunciations  extended — 

and  considering  them  entirely  cancc/Zed,  undertake  to  make  satisfaction  for  the  .same,  to  an 
amount  not  exceedmg  five  millions  of  dollars.      (8  Stat.  L.  260.) 

To  ascertain  the  full  amount  and  validity  of  these  claims  a  commis- 
sion, to  consist  of  three  commissioners,  was  appointed,  which  within 
three  years  from  the  time  of  its  first  meeting  should — 

receive,  examine,  and  decide  upon  the  amount  and  validity  of  all  the  chums  iiukidcd  within 
the  descriptions  above  mentioned.      (Id.  ibid.) 

There  seems  to  be  no  especial  agreement  or  covenant  concerning  thf 
finality  and  conclusiveness  of  the  awards,  and  they  seem  to  stand  upon 


144  FABIANI    CASE. 

the  common  basis  ascribed  to  awards  in  general.  Mr.  Justice  Ston*  of 
the  Supreme  Court  deHvered  its  opinion.  Among  other  things  decided 
by  the  court  there  appears  this: 

The  object  of  the  treat}'  wa.s  to  invest  the  oommi.ssioners  with  full  power  and  authorif}-  to 
receive,  examine,  and  decide  upon  tlie  amount  and  validity  of  the  a.s.serted  claims  upon 
Spain,  for  damages  and  injuries.  Their  decision,  within  tiie  scope  of  this  authoritj-,  is 
concbisife  and  final.  If  they  pronounce  the  claim  valid  or  invalid,  if  they  a-scertain  the 
amount,  their  avxird  in  the  premi-ses  is  not  reexaminable.  The  parties  must  abide  by  it,  as 
the  decree  of  a  competent  tribunal  of  exclusive  jurisdiction.  A  rejected  claim  can  not  be 
brought  again  VTuler  review,  ni  any  judicial  tribunal:  an  amount  once  fixed,  is  &  final  ascer- 
tainment of  the  damages  or  injury.     Thi.s  is  the  obvious  purport  of  a  language  of  the  treaty. 

See  the  case  familiarly  <|uoto(i  a.s  F'reliñghuysen  v.  Key,  found  in  the 
United  States  Supreme  Court  Reports  110,  p.  63  (L.  R.  2S,  p.  71),  where 
the  Supreme  Court  decided  the  awards  to  be  iinal  and  conclusive  as 
between  the  Ignited  States  and  Mexico  imtil  set  aside  by  agreement 
between  the  two  Governments,  or  otherwise,  and  that  the  Ignited 
States  had  right  to  treat  with  Mexico  for  a  retrial  for  particidar 
awards  because  of  the  alleged  fraudident  character  of  the  proof  given 
in  their  support,  and  that  the  President  of  the  Senate  might  concliule 
another  treaty  with  Mexico  in  respect  to  any  claims  allowed  by  the 
commission.  Mr.  Chief  Justice  Waite  delivered  the  opinion  of  the 
Supreme  Court,  in  which  opinion  we  find  and  cjuote  the  following: 

No  nation  treats  with  a  citizen  of  another  nation  except  through  his  government- 
The  treaty,  when  made,  represents  a  compact  between  the  governments  and  each  govern- 
ment holds  the  other  responsible  for  everything  done  by  their  respective  citizens  under  it. 
The  citizens  of  the  United  States  having  claims  against  Mexico  were  not  parties  to  this  con- 
vention. They  induced  (he  United  States  to  a.ssume  the  responsibility  of  seeking  redress  for 
injuries  they  claim  to  l.ave  .sustained  by  the  conduct  of  Mexico,  and  as  a  means  of  obtaining 
such  redress  the  convention  was  entered  into,  by  which  not  only  claims  of  citizens  of  the 
United  States  against  Mexico  were  to  be  adjusted  and  paid,  but  those  of  citizens  of  Mexico 
against  the  United  States  as  well.  *  *  *  Thus,  while  the  claims  of  the  individual  citi- 
zens were  to  be  considered  by  the  commi.ssion  in  determining  amounts,  the  whole  purpose  of 
the  convention  was  to  a.scertain  how  much  was  due  from  one  Government  to  the  other  on 
account  of  the  demands  of  their  respective  citizens. 

See  also  United  States  v.  Throckmorton,  98  l^.  S.Sup.  Court  Reports, 
61  (L.  R.  25:  9.3);  U.  S.  Appt.  v.  Diekelman,  92  IT.  S.  Supreme  Court 
Reports,  520  (L.  R.  23:  742);  Choctaw  Nation,  appellant,  v.  U.  S.,  119 
U.  S.  Sup.  Ct.,  1  (L.  R.  30:  306). 

Chapter  IS,  Book  2,  of  A'aftel  on  the  Lmw  of  Nations,  Chitty's  Edi- 
tion, treats  of  the  mode  of  terminating  d!s])utes  between  natitms.  and 
the  entire  chapter  is  referred  to  by  tlu^  imii)ire  as  furnishing,  in  his 
judgment,  a  basis  for  this  cas(\  The  uin|>ire  will  (juote  but  limitedl}'. 
Section  326  says  in  part: 

If  neither  of  the  nations  who  are  engaged  in  a  dispute  thinks  proper  l<>  abandon  her  right 
or  her  pretensions,  the  contending  parlies  are,  i)y  the  law  of  nature,  which  recomiii<>nds  peace, 
concord,  and  charity,  bound  to  try  the  gentlest  methods  of  Icrniinaling  their  dilfeiences. 
*     *     *     Let  each  party  coolly  and  candidly  examine  the  subject  of  the  dispute,  and  do 


OPINION    OF    UMPIRE.  145 

justice  to  the  other;  or  let  liim  whose  right  is  too  inicertain,  voluntarily  renounce  if.  There 
are  even  occasions  when  it  may  be  proper  for  him  who  has  the  clearer  right ,  to  renounce  it,  for 
the  sake  of  preserving  peace — occasions  which  it  is  the  part  of  prudence  to  discover. 

Section  327  is  entitled  "Compromise,"  concorning  which  he  says: 

Compromi.se  is  a  second  method  of  bringing  disputes  to  a  peaceable  tennination.  It  is 
an  agreement,  by  which,  without  precisely  deciding  on  the  justice  of  the  jarring  pretensions, 
the  parties  recede  on  both  sides,  and  determine  what  share  each  .shall  have  of  the  thing  in 
dispute,  or  agree  to  give  it  entirely  to  one  of  the  claimants  on  condition  of  certain  indemni- 
fications granted  to  the  other. 

Section  329  is  entitled  "Arbitration."  Concerning  this  he  says,  in 
part  : 

When  sovereigns  cannot  agree  about  their  pretensions,  and  are  nevertheless  desirous  of 
preserving  or  restoring  peace,  they  sometimes  submit  the  decision  of  their  disputes  to  arbi- 
trators chosen  by  common  agreement.  When  once  the  contending  parties  have  entered 
into  articles  of  arbitration,  they  are  bound  to  abide  by  the  sentence  of  the  arbitrators.  They 
have  engaged  to  do  this;  and  the  faith  of  treaties  should  be  religiously  observed.  *  *  * 
For  if  it  were  necessary  that  we  should  be  convinced  of  the  justice  of  a  sentence  before  we 
would  submit  to  it,  it  would  be  of  very  little  use  to  appoint  arbitrators.  *  *  *  In  order 
to  obviate  all  diíFiculty,  and  cut  off  every  pretext  of  which  fraud  might  make  a  handle,  it  is 
necessary  that  the  arbitration  articles  should  precisely  specify  the  subject  in  dispute,  the 
respective  and  opposite  pretensions  of  the  parties,  the  demands  of  the  one, and  the  objections 
of  the  other.  These  constitute  the  whole  of  what  is  submitted  to  the  decision  of  the  arbitrator; 
and  it  is  upon  these  points  alone  that  the  partiespromise  to  abide  by  their  judgment.  If,  then, 
their  sentence  be  confined  within  these  precise  bounds,  the  disputants  must  acquiesce  in  it. 
They  can  not  say  that  it  is  manifestly  unjust,  since  it  is  pronounced  on  a  question  which  they 
have  themselves  rendered  doubtful  by  the  discordance  of  their  claims,  and  which  has  been 
referred,  as  such,  to  the  decision  of  the  arbitrators.  Before  they  can  pretend  to  evade  such 
a  sentence,  they  should  prove,  by  incontestable  facts  that  it  was  the  offspring  of  corruption 
or  flagrant  partiality. 

Mr.  Bayard,  Secretary  of  State  for  the  United  States  of  America,  a 
very  eminent  and  able  lawyer,  acting  in  his  office  aforesaid,  gave  this 
official  opinion  on  May  12,  1886: 

Motions  to  open  or  set  aside  international  awards  are  not  entertained  unless  made  promptly, 
and  upon  proof  of  fraudulent  concoction  or  of  strong  after-discovered  evidence.  Wharton's 
Int.  Law  Digest,  sec.  316,  vol.  3,  page  81. 

The  award  not  having  been  vacated,  opened,  or  set  aside  during  the  lifetime  of  the  former 
commission,  and  the  claimant  having  done  nothing  since  to  waive  his  rights  thereunder,  it 
was  further  ruled  that  such  award  should  be  treated  by  our  Government  as  a  valid  and 
conclusive  ascertainment  of  his  claim  against  New  Granada.  Wharton's  Int.  Law  Digest, 
sec.  328,  vol.  2,  page  672. 

Mr.  Seward,  Secretary  of  State  for  the  United  States,  in  correspond- 
ence July  17,  1868,  referring  to  the  Alabama  claims  and  to  an  effort  to 
adjust  them  which  had  been  mad©  by  both  Governments  and  review- 
ing the  situation,  says  : 

In  th«  first  place,  Her  Majesty's  Government  not  only  denied  all  national  obligation  to 
indemnify  citizens  of  the  United  States  for  the.se  claims,  but  even   refused   to   entertain 
them  for  discussion.     Subsequently  Her  Majesty's  Government  upon  reconsideration  pro- 
posed to  entertain  them  for  the  purpose  of  referring  them  to  arbitration,  but  insisted  upon 
S.  Doc.  533,  59-1 10 


146  FABIANl    CASE. 

making  them  subject  of  special  reference,  excluding  from  the  arbitrators' consideration  cer- 
tain grounds  wliicli  tlie  United  States  deem  material  to  a  just  and  fair  determination  of 
the  merits  of  the  claims.  The  United  States  declined  this  spcdal  exception  and  exclusion, 
and  thus  the  proposed  arbitration  has  failed.     Id.,  sec.  221,  vol.  2,  p.  508. 

On  patje  569  of  the  same  volume  there  is  a  statement  by  Mr.  Frehng- 
huysen,  Secretary  of  State,  to  Mr.  Kosecrans,  October  17,  1883,  as  to 
the  action  of  the  United  States  concernint;  arbitration,  the  ftnality  of 
the  decisions,  and  the  solemnity  of  the  agreement  which  authorizes  the 
arbitration. 

Mt.  Fish,  Secretary  of  State  for  the  United  States,  to  Minister  Rus- 
sell, of  Venezuela,  June  4,  1875,  says  in  part: 

That  if  a  State,  after  having  submitted  a  controversy  regarding  claims  and  debts  due  to 
individuals,  to  arbitration,  whether  by  another  State  or  by  a  commission,  refuses  to  pay  the 
award,  it  lo.ses  credit  and  leaves  no  alternative  with  other  powers  than  that  of  refusing 
intercourse,  or  of  an  ultimate  resort  to  war.     Id.,  sec.  220,  vol.  2,  p.  550. 

Mr.  Frelinghuysen,  Secretary  of  State  for  the  United  States,  Feb- 
ruary' 11,  1884,  says  in  part: 

The  claims  presented  to  the  French  commission  are  not  private  claims  but  governmental 
claims,  growing  out  of  injuries  to  private  citizens  or  their  property,  inflicted  by  the  govern- 
ment against  which  they  are  presented.  As  between  the  United  States  and  the  citizen,  the 
claim  may  in  some  sense  be  regarded  as  private,  but  when  the  claim  is  taken  up  and 
pressed  diplomatically,  it  is  as  against  the  foreign  government  a  national  claim. 

Over  such  claims  the  prosecuting  government  has  full  control;  if  may,  a.s  a  matter  of 
pure  right,  refuse  to  present  them  at  all;  it  may  .surrender  them  or  compromise  tliem  with- 
out consulting  tlie  claimants.  Several  instances  where  this  has  been  done  will  occur  to  you, 
notably  the  ca.se  of  the  so-called  "French  spoliation  claims."  The  rights  of  the  citizen  for 
diplomatic  redress  are  as  against  his owm  not  the  foreign  government.  *  *  *  The  com- 
mission is  not  a  judicial  tribunal  adjudging  private  rights,  but  an  international  tribunal 
adjudging  national  rights.     Id.,  sec.  220,  vol.  2,  p.  558. 

Should  the  Government  of  the  United  States,  either  bj'  its  neglect  in  pressing  a  claim 
against  the  foreign  government  or  by  extinguishing  it  as  an  equivalent  for  concessions  from 
such  government,  impair  the  claimant's  rights,  it  is  bound  to  duly  compen-sate  such  claim- 
ant.    Id.,  ser.  220,  vol.  2,  p.  560. 

On  a  careftd  review  of  the  history  of  this  claim  from  its  origin  to  this 
day,  enlightened  by  study  and  reflection,  fortilied  in  ]>rinci])lo,  and 
controlled  by  reason,  responsive  to  his  conscientious  conception  of 
duty,  the  judgment  of  the  umpire  is  clear  and  positive  that  the  com- 
promise arranged  between  the  lumorable  Governments  February  24, 
1891,  followed  by  the  award  of  the  honorable  President  of  the  Swiss 
Federation,  December  15,  1896,  were,  "acting  together."  a  complete, 
final,  and  conclusive  di.sposition  of  the  entire  controversy  on  behalf  of 
M.  Antoine  Fabiani.  Therefore  the  claim  presented  before  this  tri- 
bunal, and,  on  disagreement  of  the  honorable  commis.sioners,  coming 
to  the  umpire,  and  there  entitled  "Antoine  Fabiani  No.  4,"  is  dis- 
allowed, and  the  award  will  be  prepared  accordingly. 

NoRTHFiELD,  July  31,  1906. 


AWARD    OF    SWISS    ARBITRATOR.  147 

EXHIBIT    IN    FABIANI    CASE— AWARD   UNDER    CONVEN- 
TION  OF  1891.' 

l,e  Président  de  la  Confédération  Suisse,  arbitre  designé  pour  trancher 
le  différend  existant  ( Attaire  Fabiani)  entro  Le  Gouvernement  de  la  Répu- 
blique Franvaise,  partie  demanderesse,  et  Le  Gouvernement  des  Etats-Unis 
du  Venezuela,  partie  défenderesse. 

Vu  les  exposés  et  les  conclusions  des  parties,  ainsi  que  les  preuves 
admini-strées. 

Considérant  qu'il  en  resuite; 

A.— En  fait. 

I.  Les  Gouvernements  de  la  Ré])ublique  Française  et  des  Etats-Unis  du 
Venezuela  sont  convenus,  p:ir  compromis  sij;né  à  Caracas  le  24  février 
1801,  (le  soumettre  à  l'arbitrage  du  Président  de  la  (îoufédération  Suisse, 
la  ({uestion  de  savoir  si,  "d'après  les  lois  du  Venezuela,  les  jiriucipes 
généraux  du  droit  des  gens  et  la  Convention  (du  20  novembre  1885)  en 
vigueur  entre  les  deux  Puissances  contractantes,  le  (Jouvernement  véné- 
zuélien est  responsable  des  dommages  que  Fabiani  dit  avoir  éprouvés  pour 
dénégations  de  justice,"  et  <le  charger  l'abitre  "do  lixer,  au  cas  oîi  cette 
responsabilité  serait  reconnue  pour  tout  ou  partie  des  rc'clauiations  dont 
il  s'agit,  le  montant  de  l'indemnité  pécuniaire  que  le  (Jouvernement  véné- 
zuélien devrait  verser  entre  les  mains  de  M.  Fabiani,  et  qui  effectuerait  en 
titres  de  la  dette  dii)lomati(iue  de  Venezuela  3  "q." 

L'arbitrage  ayant  été  accepté,  la  procédure  fut  instruite  par  voie 
d'échange  de  mémoires  et  ])ar  l'administration  de  preuves  tant  littérales 
que  testimoniales  offertes  ]>ar  les  Gouvernements  intéressés. 

II.  Les  faits  allégués  dans  la  demande  sont  les  suivants: 

M.  Antoine  Fabiani  épousa,  en  avril  18Ü7,  la  fille  de  M.  Benoit  Roncayolo, 
chef  d'une  maison  d'armement  de  voiliers,  à  Marseille.  Roncayolo  suspen- 
dit ses  paiements,  le  31  août  <le  la  même  année,  et  fut  déclaré  en  état  de  fail- 
lite. Son  gendre  Fabiini,  qui  était  alors  avocat  pr  s  la  cour  de  Kiistia, 
s'eftorça  <le  sauver  la  situation.  Au  bout  de  deux  ans,  il  put  informer  son 
beau-père,  établi  à  Maracaïbo,  ([U  il  avait  obtenu  un  concordat  pour  ce 
dernier;  il  i)aya  lui  même  le  dernier  divideinle  de  10"o. 

Fabiani  fixa  sou  domicile  à  Marseille.  Un  oncle  lui  avanva  de  fortes 
sommes  d'argent,  et  lui-nu"nie  chercha  di  sormais  à  recouciuirir  la  fortune 
perdue  par  Benoit  lioncayolo.  Dans  ce  but,  et  afin  de  conserver  le  mono- 
pole pres(iue  exclusif  des  rapports  maritimes  et  commerciaux  de  Mara- 
caïbo avec  la  France,  monopole  exercé  naguère  par  Roncayolo,  il  acheta 
d'abord  le  iiaviit  Pti.iline;  il  développa  ensuite  ses  aff;iires  d'exportation 
et  d'imiiortatiiiu  et  affecta  cinq  trois-uiàts  à  ce  service,  sans  parler  d'un 
puisH.int  leuioiiiueur  destiné  à  la  barre  et  au  lac  de  Maracaïbo.  Trois 
maisons  furent  successivement  fondées  au  Venezuela,  à  Caracas,  à  Mara- 


'  The  President  of  the  Swiss  Confederation  was  authorized  by  the  federal 
committee  November  1,  1892,  to  accept  the  post  of  arbitrator  under  the 
convention.  (Rapport  du  Département  Federal  des  Affairés  Etrangí-res, 
18y_',  ]).3l.)  A  statement  of  the  claim  was  filed,  and  a  period  was  then 
üxed  lor  the  presentation  of  the  Venezuelan  answer.  The  French  Govern- 
ment submitted  a  reply.  These  papers  having  been  exchanged,  an  order 
was  made  by  the  arbitrator  in  regard  to  the  taking  of  proofs.  (Id.  1894, 
p.  38. 


148  FABIANI    CASE.  , 

caïbo,  à  La  Guayra;  Fabiani  y  int^^ressa  son  bean-pèro  et  son  beau-frère 
Andró  Roucayolo,  qui  reçurent  l'attribution  de  la  moitié  des  bt^nófices. 

Mais  bientôt  Fabiani  découvrit  que  les  Roncayolo  avaient  commis  des 
malversations  à  son  préjudice,  au  Vónt'zuóla.  Il  se  vit  obligó  d'interdire 
à  son  beau-pire  toute  participation  officielle  aux  opérations  de  la  maison 
Fabiani  et  de  restreindre  les  jiouvoirs  du  fils  Roncayolo.  Le  7  dócenibre 
1874,  B.  Roncayolo  n'en  renouvela  pas  moins,  en  son  nom,  le  contnit  de 
remorquage  i)ass6  avec  le  Président  de  l'Etat  vénézuélien  de  Zulia,  en 
engageant  la  responsabilité  de  "ses"  établissements  de  commerce  fondés 
sous  la  raison  sociale  Autoint;  labiani  et  C''.  Fabiani  arrêta  net  toutes 
les  affaires  d'exportation,  prohiba  tons  tirages  de  traites,  exigea  la  resti- 
tution de  ses  avances  et  la  ¡)ronipte  liquidation  de  ses  intérêts.  Il  dut 
néanmoins  se  convaincre  que  les  Roncayolo  travaillaient  a  "une spoliation 
qui  serait  facilitée  par  la  vénalité  des  pouvoirs  judiciaires  du  ^'énézucla." 
Il  se  disposait  à  recourir  aux  tribunaux  français,  les  conditions  de  l'asso- 
ciation ayant  été  arrêtées  à  Marseille,  (juand,  sur  les  instances  de  Ronca- 
yolo fils,  il  consentit  à  une  solution  amiable  du  conflit. 

La  transaction,  signée  à  cette  occasion,  date  du  31  janvier  1878.  Inter- 
venue entre  Antoine  Fabiani  et  André-  Roncayolo,  elle  constat  que  B.  Ron- 
cayolo n'a  jamais  fait  d'apports  en  argent,  elle  défère  au  Tribunal  de 
Marseille  toutes  les  difficultés  cjui  pourraient  s'élever  au  sujet  de  son  exé- 
cution, elle  constitue  Roucayolo  fils  débiteur  de  la  somme  de  617,895  fr. 
10,  valeur  au  31  janvier  1878.  D'autre  part,  la  maison  Roncayolo  de  Mara- 
caïbo  devait  être  remplacée  par  une  succursale  de  la  uuùsou  Fabiani,  de 
Marseille,  succursale  cini  serait  dirigée  par  A.  Roncayolo,  à  l'exclusion  de 
toute  ingérence  do  Koncayolo  pire. 

Les  anciennes  irrégularités  reprochées  aux  Roncayolo  se  renouvelèrent. 
Fabiani  révocjua  les  pouvoirs  de  Romcayolo  fils  et  lui  substitua  un  sous- 
agent,  auquel  Roncayolo  pi-re  sempressa  de  marier  sa  fille  cadette.  Il  y 
avait  6  à  700,000  fr.  de  traites  à  payer.  Fabiani  comprit  que  sa  présence 
au  Venezuela  était  nécessaire.  Il  partit  le  3  novembre  1879,  non  toute- 
fois sans  avoir  introduit  instance  à  Marseille  contre  ses  deux  fondés  de 
procuration  ;  les  tribunaux  de  ^larseille  étaient  coinpt-tents,  en  eflet,  et  du 
reste,  B.  Roncayolo  avait  écrit,  le  14  juin  1879,  que  la  justice  vénézuélienne 
se  laissait  corrompre  à  i)rix  d'argent. 

Au  Venezuela,  Fabiani  réclama,  en  toute  première  ligne,  le  paiement 
d'une  somme  de  10.3,458  fr.  75,  représentée  par  cinc[  traites  que  lui  avaient 
été  délivrées,  pour  des  transports  d'émigrauts,  par  les  consuls  du  Vene- 
zuela à  Marseille  et  à  ïénériffe.  MM.  Roche  et  Cio.,  auxquels  ces  traites 
avaient  été  remises  pour  l'encaissement,  refusèrent  de  les  restituer,  sous 
prétexte  qu'elles  avaient  été  données  en  gage  par  acte  du  6  mars  1877, 
acte  frauduleux  d'après  la  demande.  Le  dossier  de  ces  traites  avait 
d'ailleurs  disparu  et  le  cabinet  de  Caracas  annula  ses  ordres  de  paiement 
antérieurs.  Si  Fabiani  ne  poursuivit  pas  l'afi'aire  au  criminel,  c'est  qu'on 
l'en  dissuada  vivement.  Les  Roncayolo.  le  directeur  du  Ministère  des 
Finances  et  un  comparse  atiraient  collaboré  à  cette  machinaticm. 

On  méconnut  également  les  droits  de  Fabiani,  comme  propriétaire  du 
\  apeur  l'auline,  pour  services  rendus  à  n^tat  par  ce  navire  pendant  la 
révolution  (jui  ramena  M.  Guzman  Blanco  au  pouvoir.  B.  Roncayolo  avait 
touché  55,000  fr.  sur  ce  qui  était  dil  à  Fabiani,  au  lieu  des  30,000  fr.  qu'il 


AWARD    OK    SWISS    ARHITKATOR.  l49 

avouait  avoir  perçus;  le  Ministí-re  tl«8  Finances  ne  permit  pas  au  vérita- 
ble créancier  de  faire  constater  ce  détonruenient. 

Fabiaui  tenta  eu  vain  d'oDtenir  du  tribunal  de  commerce  de  Caracas 
la  nullité  du  gage  invoqué  par  MM.  Roche  et  Cie.  La  restitution  des 
traites  fut  bien  ordonnée,  mais,  aussitôt  aprî-s,  le  tribunal  rejeta  une 
requête  à  fin  d'exécution  provisoire  du  jugement,  par  la  raison  quo 
Fabiaui,  étranger  au  pays,  devait,  au  préalable,  fournir  un  cautionnement. 
Fabiaui  annonça  qu'il  était  en  mesure  d'offrir  toutes  les  garanties  désira- 
bles, 80U  vapeur  Pauline  étant  arrivé  i\  La  Gnayra.  Mais,  (niand  il  voulut 
verser  au  dossier  sa  patente  de  navigation,  il  découvrit  (¡u'elle  ét:iit  an 
nom  de  "  Roucayolo-Fabiani"  bien  <[u'clle  lui  eût  été  accordée  h  lui, 
comme  propriétaire  unique,  en  avril  1879.  Il  y  avait  là  un  audacieux 
abus  de  pouvoir  cpmmis  par  A.  Roncayolo  junior,  au  mépris  de  la  transac- 
tion de  1878. 

Le  vapeur  Pauline,  réquisitionné  par  le  Gouvernement  vénézuélien  pour 
aider  à  la  répression  d'une  émeute,  allait  regagner  son  port  d'attache. 
B.  Roncayolo,  comme  représentant  de  Roncayolo- Fabiaui,  sollicitait  le 
paiement  d'une  somme  de  63,000  fr.  due  de  ce  chef.  Fabiani  s'y  opposa  et 
le  montant  de  l-a  réclamation,  arrêté  par  l'Etat  au  chifî're  de  57,7)S0  fr.,  fut 
consigné  en  mains  tierces  pour  le  compte  de  la  maison  Antoine  Fabiani  de 
Maracaïbo,  car,  selon  la  demande,  les  Roncayolo  étaient  plus  sûrs  des 
autorités  judiciaires  de  cette  dernière  ville  que  celles  de  Caracas.  Au 
demeurant,  M.  Guzman  Blanco,  chef  de  l'Etat,  qui  était  associé  dans  de 
grandes  entreprises  avec  B.  Roncayolo,  son  agent  politique,  s'apprêtait  à 
intervenir  directement  dans  le  conflit. 

De  graves  soucis  appelant  Fabiani  à  Maracaïbo,  il  s'y  rendit  eu  avril 
1880,  mais  il  y  trouva  presque  vide  la  caisse  de  son  agence;  André  Ron- 
cayolo l'avait  pillé.  Après  bien  des  pourparlers  et  des  démêlés  avec 
celui-ci,  Fabiani  comprit  qu'il  serait  obligé  de  capituler,  tant  le  terrain 
était  bien  préparé  contre  lui  à  Maracaïbo. 

En  revanche,  B.  Roncayolo  était  de  plas  en  plus  en  faveur  auprès  de 
M.  Blanco,  avec  lequel  il  était  intéressé  dans  la  grosse  affaire  du  chemin 
de  fer  de  la  Ceïba  à  Sabana  de  Mendoza;  l'obstination  que  Fabiani  mettait 
à  défendre  ses  droits  dérangeait  des  combinaisons  politico-financières 
importantes.  M.  Stamman,  ministre  plénipotentiaire  d'Allemagne  à  Cara- 
cas, aura,  dit  la  demande,  renseigné  son  Gouvernement  sur  les  attentats 
et  les  injustices  dont  î'abiani  fut  victime  durant  ce  séjour  à  Maracaïbo. 

En  attendant,  on  lui  avait  enlevé  le  service  du  remorquage,  on  s'était 
emparé  de  ses  navires,  et  la  cour  suprême  avait  confirmé  la  sentence  qui 
dépossédait  Fabiani.  Il  ne  restait  plus  à  ce  dernier  qu'à  retourner  en 
France  et  à  implorer  la  protection  de  son  Gouvernement,  si  les  autorités 
judiciaires  et  administratives  du  Venezuela  continuaient  à  se  liguer  contre 
lui.  C'est  alors  qu'un  ami  vint  lui  proposer  de  le  sortir  d'embarras,  moyen- 
nant qu'il  consentît  à  une  révision  de  la  transaction  de  1878  par  un  arbi- 
trage. Fabiani,  cédant  à  la  force  majeure,  accepta  de  suspendre  toutes 
poirrsuites  et  actions,  et  de  signer  un  compromis  qui  sauverait  peut-être 
l'avenir  de  son  commerce  au  Venezuela. 

Le  tribunal  arbitral,  réuni  à  Marseille,  statua  eu  date  du  1.5  décembre 
1880;  ses  décisions,  aux  termes  du  compromis,  étaient  exécutoires  au 
Venezuela,  sans  aélai  et  sans  qu'on  pfit  admettre  contre  elles  aucun 
recours,     ha  sentence  qu'il  rendit  peut  s<î  résumer  ainsi  : 

1°.  Les  comptes  de  Fabiani  furent  reconnus  exacts;  le  débit  d'André 


150  FABIAN!    CASK. 

Roncayolo  fnt  nzë  à  la  somme  de  538,359  fr.  07  cent.,  toute  réclamation  lui 
étant  interdito  an  sujet  des  dits  comptes; 

2".  L'enterprise  du  remoniuage  fut  déclarée  la  propriété  exclusive  de 
Fabiani,  depuis  le  30  novembre  1877,  comme  aussi  les  vapeurs  Eclair, 
Mara,  Pau  Une,  et  les  engins  et  aeeessoires  destinés  au  service  du  remortiuage. 
Fabiani  fut  autorise  à  reprendre  l'administration  de  ce  service,  "pour  en 
régler  la  gestion  à  sa  convenance,  sans  que  M.  Henoit  Roncayolo,  ni  M. 
André  Koncayolo,  ni  aucun  tiers  puissent  s'y  immiscer  directement  ou 
indirectement,"  l'insertion  du  nom  de  B.  Koncayolo  dans  l'acte  de  con- 
cession "ayant  été  la  conséquence  d'une  faute."  B.  Koncayolo  était  tenu 
cependant,  à  peine  de  dommages  et  intérêts,  de  laisser  son  nom  tigurer 
dans  l'entreprise,  si  Fabiani  le  jugeait  plus  conforme  à  ses  intérêts,  ou  si  le 
Gouvernement  vénézuélien  se  refusait  à  modifier  la  concession  sur  ce  point; 

3".  Tous  les  produits  du  remorquage,  depuis  le  30  novemljre  1877,  y  com- 
pris les  béni'fices  du  pilotage  dès  la  même  date,  furent  attribut  s  à  Fabiani  ; 
les  personnes  qui  les  avaient  touchés  avaient  l'obligation  de  les  lui  restituer  ; 

4".  B.  et  A.  Koncayolo  furent  condamnés  solidairement  au  coiit  de  l'en- 
registrement de  la  sentence  arbitrale  et  de  ses  annexes. 

Le  compromis  liait  Fabiani,  de  même  que  Koncayolo  pi-re  et  tils,  qui  y 
avaient  adhéré  tous  les  deux.  La  sentence,  rendue  par  deux  arbitres,  qui 
étaient,  l'un,  le  frère  et  créancier  de  B.  Koncayolo,  l'autre,  l'oncle  et 
créancier  de  Fabiani,  fut  enregistrée  à  Marseille  le  17  décembre  1880  et 
déclarée  exécutoire  le  21  même  mois  par  le  président  du  tribunal  de  pre- 
mière instance  de  cette  ville. 

Les  Roncayolo  formèrent  opposition  à  l'exécution  de  la  sentence  arbi- 
trale, en  requérant  l'annulation  du  com])romÍ8  de  Caracas  et  la  révocation 
de  l'ordonnance  d'exequatnr.  Déboutés  par  jugenu'ut  du  tribunal  de 
première  instance  de  Marseille,  du  1""  avril  1881,  ils  interjetèrent  appel;  mais 
la  cour  d'appel  d'Aix  confirma  la  décision  du  tribunal  de  Marseille  par 
son  arrêt  du  25  juillet  suivant,  et  il  n'y  eut  pas  de  pourvoi  en  cassation. 

Avant  le  prononcé  de  l'arrêt  d'appel,  Fabiani,  qui  était  retourné  en 
Europe,  repartit  pour  Caracas  dans  le  but  d'introduire  et  de  diriger  la  pro- 
cédure d'exécution.  Mais  divers  indices  et  renseignements  lui  firent 
craindre  de  nouvelles  difiicultés.  Trois  jours  après  son  arrivée  à  Caracas 
vers  la  fin  de  mai  1881,  Fabiani  écrivit  à  M.  Guzman  Blanco  pour  lui 
annoncer  que  le  iiaiement  d'une  somme  de  plus  de40,000  fr.,  réclamé  au  (îou- 
vernement  par  B.  Koncayolo,  devait  être  ertectué  entre  ses  mains  à  lui, 
Fabiani,  eu  vertu  do  la  sentence  arbitrale  du  15  décembre  1880;  il  le  priait, 
en  même  temps,  de  difléier  le  paiement  de  la  dite  somme.  Cette  lettre 
demeura  sans  réponse.  Le  7  juin  1881,  il  déposa  au  grefie  de  la  haute 
cour  fédérale  l'original  et  la  traduction  du  dossier  de  l'arbitrage,  ainsi 
qu'une  demande  d'execiuatur. 

Il  ne  s'agissait,  en  l'espèce,  que  d'une  siniph^  formalité,  à  moins  d'une 
véritable  déuégation  de  justice  de  la  part  de  la  haute  cour  (art.  5.5(5  et 
8uiv.  C.  proc.  civ.  venez.).  Des  renvois,  des  incidents,  des  intrigues  retar- 
dèrent la  solution  de  l'att'aire.  En  fin  de  compte,  bien  (ju'il  efit  été  établi 
au  cours  des  plaidoyers,  par  d(is  documents  irrécusables,  que  l'ordonnance 
d'exécution  du  jjrésident  du  tribunal  de  Marseille  avait  été  c<mfirmée 
aussi  bien  en  appel  qu'en  première  instance,  la  haute  cour  fédérale,  le  11 
novembre  1881,  se  déclara,  par  cin(|  voix  contn^  quatre,  incomi)étento  pour 
donner  force  exécutoire  ù  la  sentence  arbitrale,  attendu,  "(¡n'ou  no  peut 
considérer  comme  un  tribunal  de  France  la  réiiuion  dos  arbitres  <|ui  a  eu 


AWARD    OF    SWISS    ARBITRATOR.  151 

lieu  à  Marseille,"  et  qu'une  ordounancc  judiciaire  d'exc^cution  "ne  i)eut 
convertir  en. juges  de  la  nation  ceux  qui  ne  le  sout  pas  et  en  sentence  d'un 
tribunal  ótrauger  ce  <nii  est  siuiplement  le  complément  d'un  contrat" 
{Annexe  1,  de  la  <l('lense,  p.  23  et  suiv.). 

Les  quatre  juges  ioiinant  minorité  protestèrent,  dans  des  "réserves" 
motivées,  la  sentence  arbitrale  satisfaisant,  selon  eux,  à  toutes  les  condi- 
tions prescrites  par  l'art.  557  du  Code  de  procédure  civile  vénézuélien  et 
son  assimilation  à  un  jugement  ordinaire  n'étant  pas  contestable. 

Une  nouvelle  instance  fut  introduite,  et,  le  ♦>  juin  1882,  la  haute  cour 
fédérale,  dont  la  composition  avait  partiellement  changé  d;ins  l'intervalle, 
"déclarait  exi'cntoire  au  Venezuela  la  sentence  de  la  cour  d'app;l  d'Aix." 
Fabiani,  sur  le  conseil  d'nn  ami,  communiqua  ce  résultat  à  M.  Blanco,  qui, 
au  lieu  de  respecter  les  décisions  judiciaires  intervenues,  conunenva  par 
mander  à  sou  ministre  des  finances  de  verser  à  B.  Roncayolo  nue  somme 
de  28,000  l'r.  due  à  Fabiani  pour  emploi  récent  du  vapeur  rauliite  dans 
l'intérêt  de  l'Etat.  Fabiani  no  s'empressa  i)as  moins,  malgré  l'hostilité  du 
pouvoir,  de  re(iuérir  l'exécution  efl'ective  du  jugement  arbitral.  11  s'em- 
barqua pour  Maraca'.bo;  unii  inscription  hypothécaire  fut  jirise,  di  s  le  11 
juin  1882,  contre  I?.  et  A.  Roncayolo  sur  tous  les  droits  lenr  appartenant 
dans  le  chemin  de  fer  et  sur  la  douane  de  la  Ce'.'ba,  et  une  autre  inscri])- 
tion,  de  120,000  fr..  sur  la  section  Trujillo  du  chenun  de  fer.  Mais  les  Ron- 
cayolo, soutenus  au  reste  jjar  le  président  de  l'Etat  de  Trujillo,  venaient, 
par  un  contrat  frauduleux,  de  céder  tous  leurs  droits  à  un  tiers. 

Le  juge  de  première  instance,  à  Maracaïbo,  ordonna  l'exécution  de  la 
sentence  au  bénéfice  de  laquelle  se  trouvait  Fabiani;  les  Roncayolo 
demandèrent  alors  sa  récusation.  Il  se  récusa  d'abord,  puis  se  ravisant, 
débouta  les  opposants  de  leurs  conclusions  formulées  contre  sa  dernière 
décision  et  décréta  l'envoi  eu  possession  des  na>  ires,  le  14  juillet  1882. 

Sur  ces  entrefaites,  Fabiani  tomba  malade  de  la  fiLvre  jaune.  La  pro- 
cédure d'exécution  fut  suspendue  sans  raisons  plausibles;  en  particulier, 
le  juge,  qui  n'aurait  dû  admettre  aucun  pourvoi  contre  le  mandat  d'exécu- 
tion par  lui  décerné,  accueillit,  avec  etfet  dévolutif  seulement,  il  est  vrai, 
l'appel  interjeté  contre  son  décret.  Les  adversaires  de  Fabiani  recou- 
rurent au  juge  supérieur,  qui  attribua  à  l'appel  un  double  effet,  d.-volutif 
et  suspensif.  Tout  acte  de  procédure  était  interdit  jusqu'à  ce  qu'il  eût  été 
prononcé  en  instance  d'appel. 

L'admission  de  l'appel  à  deux  eft'ets  violait  la  loi,  ainsi  que  la  haute 
cour  fédérale  le  reconnut,  dans  son  arnt  du  8  décembre  1883,  en  déclarant 
(lue  l'exécution  avait  été  interrompue  par  "  des  recours  ill.  gaux  lorsqu'il 
s'agit  do  l'exécution  d'une  sentence.''  Aux  yeux  de  Fabiaui,  le  juge-prési- 
dent de  la  cour  supérieure  était  l'instrument  des  Roncayolo.  Fabiani 
souleva  le  recours  de  fait  devant  la  cour  supérieure  contre  la  décision  de 
ce  magistrat  et  le  récusa  du  même  coup.  Il  rentra  bientôt  après  en  Europe, 
eu  couliant  la  garde  de  ses  intérêts  à  ses  amis  et  représentants. 

Trois  motifs  de  récusation  avaient  été  invoqués.  Les  ennemis  de  Fabiani, 
désireux  d'en  finir,  parvinrent  à  faire  modifier  la  constitution  de  l'ICtat  de 
Falcon-Zulia,  dans  le  sens  que,  "  pour  les  cas  de  récusation  du  juge  supé- 
rieur, son  supph'aut  n'aurait  plus  besoin  d'être  docteur  en  jurisprudence," 
et  que,  pour  connaître  de  la  récusation,  la  cour  suprême  formerait  une 
liste  d'avoi  ats  et  do  citoyens,  parmi  lesquels  le  gouverneur — qui  était  le 
frère  d'un  des  avocats  des  Roncayolo — choisirait  le  suppléant. 

Le  juge-suppléant  désigné  pour  statuer  sur  le  jirwmier  motif  de  récusa- 


Iñ2  ^ABIANI    CASE. 

tion,  l'ócarta,  et  se  retira  ái'S  qu'il  eut  à  se  prononcer  snr  le  denzième.  Il 
fut  remplacé  par  une  créature  des  Roncayoloet  de  leurs  alliés,  qui  débouta 
Fabiaiii.  Tne  troisième  récusaticuiayaut  été  proposée  pour  manifestation 
d'opinion  le  magistrat  la  déclara  irrecevable,  parce  (|u'nne  formalité  d<' 
proCfdur»;  Ut'  fut  pas  remplie  ensuite  d'uu  oubli.  La  décision  fut  aussitôt 
frappée  d'appel  ;  il  refusa  d'admettre  le  pourvoi  et  la  cour  suprême  fut 
saisie. 

Entre  temps,  les  autorités,  à  en  croire  les  lettres  des  fondés  de  pou- 
Vdirs  de  Fabiani,  considéraient  les  vapeurs  de  celui-ci  (  omuio  leur  bien. 
Ou  escomptait  l'annulation  du  mandat  d'exécution  et  l'on  se  promettait 
d'écraser  Fabiani  en  exigeant  de  lui  le  remboursement  immédiat  des 
recettes  du  remorquage,  les  frais  judiciaires  et  les  honoraires  des  avocats 
poursuivants. 

11  y  avait  un  moyen  encore  de  conjurer  les  etl'orts  des  Roncayolo: 
provoquer  l'intervention  de  l'exécutif  fédéral,  qui,  d'apr.  s  le  sec.  17  de 
l'art.  13  de  la  constitution,  devait  veiller  à  l'exécution  "des  «lécrets  et 
ordres"  que  les  "tribunaux  de  la  fédération  rendraient  dans  l'exercice  de 
leurs  attributions  et  de  leurs  facultés  légales."  Le  ministre  de  l'Intérieur, 
invité  à  agir,  le  2  juillet  1S83.  r.  i)Ondit,  le  9  même  mois,  que  '•  l'Exécutif 
national  a  décidé  que  c'est  à  la  haute  cour  fédérale  qu'il  api);irtient  de 
faire  observer  ses  dispositions  et  que  c'est  à  elle  (¡ne  doit  s'adresser 
l'intéressé." 

Fa'iani  revint  devant  la  haute  cour.  Mais,'  dans  l'iuterv;ille,  pour 
détruire  par  anticipation  l'ert'et  d'une  décision  nouvelle,  le  l'n  sideut  de 
la  Ri  publi([uc,  M.  (iuzman  Blanco,  par  une  résolution  du  21  août  1883, 
approuva  la  cession  frauduleuse  du  contrat  de  chemin  de  fer  de  la  Ceiba 
consentie  par  B.  Roncayolo,  soustrayant  ainsi  les  biens  d'un  débiteur  à 
l'action  d'un  créancier.  Enfin,  le  8  décembre  1883,  la  haute  cour  décida 
que  le  juge  de  première  instance  devait  continuer  une  exécution  illégale- 
ment arrêtée  depuis  ie  14  juillet  1882. 

Le  28  janvier  1884  le  juge  compétent  d<  cerna  un  mandat  d'e?vécMtion,  qui 
visait  sjiecialement  les  droits  et  actions  de  B.  Roncayolo  dans  le  cliemin 
de  fer  et  sur  la  douane  de  la  Ceiba.  Cette  décision  du  juge  de  Maracaibo 
devait  jjn'cipiter  les  événements.  La  Gaceta  OJivial,  du  21  février  1884, 
notifia  (jue,  par  un  contrat  daté  de  la  veille,  le  service  <lu  remoniuage,  des 
bouées  et  du  ])ilotage  dans  la  lagune  et  sur  la  barre  de  Maracaibo,  dont 
Fabiani  venait  d'être  remis  en  possession  paisible,  était  coucédé  à  uu 
prête-nom  de  B.  Roncayolo.  Or,  ce  contrat  apparaissait  comme  iiu  acte 
de  vengeance;  coincidence  singulière,  il  fut  signé  le  jour  même  oii  M. 
Blanco  avait  dû  résigner  ses  fonctions  présidentielles  entre  les  mains  de 
S(m  successeur. 

Dès  qu'on  connut  à  Maracaibo  le  contrat  du  20  février  1884,  qui  causait 
un  préjudice  matériel  et  moral  considérable  à  Fabiani,  le  crédit  de  celui  ci 
fut  sérieusement  ébranlé  et  sa  maison  menacée  d'une  catastrophe. 

Bien  plus,  au  niênie  moment,  le  23  février  1881,  la  cour  SMpreme  de 
Falcon-Zulia,  soulevant  un  conflit  de  com])étence,  déniait  à  la  haute  ■  oiir 
fédérale  le  droit  do  faire  exécuter  la  sentence  arbitrale  et  ordtmnait  la 
transmission  du  dossier  à  un  tribunal  8])écia],  pour  \  oir  annuler  l'ariet  du 
8  décembre  1883. 

Cet  arrêt  de  contlit,  suivant  de  si  près  le  retrait  du  remor(|iiage,  meituit 
Fabiani  en  préseme  d'un  tribunal  (|iii  n'avait  ,)a::iais  foiutioniK'  et  dt)Ut 
la  composition  était  à  la  discrétion  du  pouvoir  exécutif;  il  était  d'ailleurs 


AWARD    OF    SWlí^^    ARHITRATOR.  15.^ 

entache  d'arbitraire,  comme  le  Gouvernement  et  la  haute  cour  l'avaient 
reconnu  iiiiplii'iteMieiit,  l'un  le  9  juillet,  l'autre  le  S  dóeerabre  1883.  Mai» 
on  espérait  ramener  ainsi  la  procédure  à  son  poiut  de  départ,  anéantir  tous 
les  actes  postérieurs  au  9  juillet  1883,  et  livrer  Fabiani  à  des  juges 
complaisants. 

Le  4  mars  1884,  le  Gouvernement  accordait  en  outre  à  lî.  Roucayolo,  pour 
le  chemin  de  1er  de  la  Ceiba,  une  subvention  mensuelle  de  2,000  ir.,  (jui, 
toute  minime  <iaelle  lût,  n'en  était  pas  moins  destiñere  à  montrer  où  allaient 
les  sympathies  officielles.  Le  chemin  de  fer  avait  bien  été  cédé  par  Ron- 
cayolo  six  semaines  aujiaravant,  mais  la  cession,  revêtue  cependant  de 
rap])robation  du  chef  de  l'Etat,  s'évanouissait,  car  Roucayolo  avait  tou- 
jours été  en  lait  le  i)roi)riétaire  de  la  ligue.  Seulement,  il  n'avait  plus 
rien  i\  craindre  de  Fabiani,  et,  par  un  subterfuge,  les  droits  de  Roucayolo 
pouvaient  être  rendus  illusoires,  s'il  le  iallait,  pour  contrecarrer  son 
adversaire. 

Fabiani  retourna  au  Venezuela  en  mai  1884.  L(î  tribunnl  d'exception, 
(|ui  aurait  dû  statuer  d'office  et  sans  délai  sur  l'arrêt  de  conflit,  ne  se 
réunissait  point.  L'influence  de  M.  Blanco  demeurait  i)répondi'rante  et 
sa  haiue  s'acharnait  contre  Fabiani.  Tout  était  perdu,  d'autant  plus  (¡ue, 
le  26  octobre  1885,  B.  Roucayolo  devait  céder  à  nouveau  ses  droits  sur  la 
ligne  la  Ceïba  pour  la  somme  de  298,600  fr.,  dont  178,600  déjà  rei/us,  en 
sorte  qu'il  ne  restait  plus  que  120,000  fr.,  juste  la  valeur  de  l'inscription 
hypothécaire  incomplète,  prise  au  nom  de  Fabiani  le  16  juin  1883,  et  des 
terrains  qu'on  eut  vendus  pour  rien  au  cours  d'une  expropriation  ibrcéi . 
Seule,  une  donation  déguisée,  ou  toute  autre  machination,  pouvait  ex  pli  (¡Mer 
l'abandon,  à  ce  prix,  d'une  ligue  de  50  kilomètres,  oui  avait  été  construite 
à  grand  frais  et  (jui  devait  donner,  pour  l'exercice  de  1890  à  1891,  un  béué-* 
Hce  net  de  près  de  400,000  fr. 

Le  Gouvernement  approuva  ce  transfert,  bien  qu'il  fût  notoire  au  Vene- 
zuela que  Fabiani  avait  des  réclamations  tres  considérables  à  faire  valoir 
contre  les  Roucayolo  et  que  le  contrat  du  26  octobre  1895  dépoiiillAt  ses 
débiteurs.  Il  ne  fallait  pas,  poursuit  la  demande,  songera  intenter  une 
ai  tion  paulieune,  devant  les  tribunaux  de  l'Etat  de  Trujillo,  au  fond  des 
Cordillières,  puisque  ajirès  des  années,  Fabiimi  n'avait  i>u  obtenir,  à  Cara- 
cas and  Maracaïbo  l'exécution  de  jugements  inattaquables.  Plus  tard,  B. 
Roucayolo  réussit  à  se  faire  octroyer  une  autre  cojicession  de  chemin  de 
fer,  qui  a  représenté,  pour  lui,  un  bénétice  annuel  de  225,000  fr.  eu  1892 

La  demande  rappelle  encore  que,  le  21  novembre  1885,  la  France  et  Vene- 
zuela signèrent  une  convention  pour  la  reprise  des  négociations  diplo- 
matiques et  que  Fabiani  fut,  quelque  temps  après  déclaré  en  état  de 
faillite  au  Venezuela,  pour  défaut  de  paiement  immédiat  d'un  montant 
inférieur  au  tiers  des  sommes  induement  retenues  ¡lar  le  Governement 
défendeur.  Elle  cherche  à  prouver  que  la  convention  de  1885  est  inap- 
plicable au  difî'éreud  Fabiani  et  conclut  à  la  réparation  du  dommage 
causé,  pour  faits  du  ])rince  et  dénis  de  justice,  i)ar  les  autoriti's  admini- 
stratives et  judiciaires  de  l'Eltat  du  Venezuela,  dommage  dont  l'Etat  est 
responsable,  et  qui  comprend  : 

1°.  La  rt'paration  du  tort  éprouvé; 

2".  Le  gain  manqué; 

3°.  Les  intérêts  calculés  dès  la  date  des  actes  dommageables; 

4°.  Les  intérêts  composés  ; 


16'4 


KA  HI  A  XI    ("A8K. 


5".  Les  sacrifices  faits  par  la  partie  leaf's  pour  le  luaintien  de  son 
industrie; 

6'.  Le  préjudice  résultant  des  dépenses  laites  et  du  temps  perdu  pour 
arriver  à  l'exécution  des  sentences; 

7".  Les  doiniiiages  à  considérer  comme  la  suite  nécessaire  des  délits; 

8".  Le  dommage  causée  par  la  ])rivation  du  travail  à  l'avenir; 

9".  La  réparation  du  préjudice  moral. 

L'état  des  réclamations  Fabianuest  spécifié  comme  suit  dans  le  demande 
en  capital  et  intérêts  capitalisés  : 


Etat  A.  lÂffuidation  des  sen  fences. 

Francs. 

1".  Solde  créditeur  au  31  août  1879,  réduit  à 509,  183. 10 

Intérêts 630,  966.  0-' 

2'.  Annuités  totales  en  vertu  du  contrat  de  mariage  du  20 
avril  1867,  du  24  avril  1877  à  pareille  date  de  1892,  la 
transaction  de  1878  aj'ant  liquidé  la  situation  anté- 
rieure, en  capital 150,  000.  Od 

Intérêts 96,  701.  00 

3°.  Perte  éprouvée  sur  la  vente  de  la  moitié  des  marchandises 
qui  restaient  ù  liquider  à  Marseille — poste  dfi,  d'après 

la  transaction  du  31  .janvier  1878 24,  296.  72 

Iutérêt.s 33.  926.  58 

4  '.  Kecettes  du  pilotage,  suivant  sentence  arbitrale: 

(a)  du  1^' décembre  1877  au  30  novembre  1878 16,000.(0 

Intérêts 21,428.58 

(b)  du  l*^"-  décembre  1878  au  30  novembre  1879 16,  000. 00 

Intérêts 19,  310.  00 

(c)  du  l"^--  décembre  1879  au  30  novembre  1880 16,  000.  00 

Intérêts 17,311.32 

(d)  du  1"  décembre  1880  au  30  novembre  1881 12, 500.  00 

Intérêts 12, 051.  38 

(«)  du  1"- décembre  1881  au  15  juillet  1882 7,812.4? 

Intérêts 6,  981. 23 

r>'.  Indemnité  pour  emploi  du  vapeur  Pauline,  solde  (abus  de 

confiance  B.  Roncayolo),  année  1879 25,  000. 00 

Int.'rêts 31,517.50 

6".  Indemnité  pour  services  rendus  parles  vapeurs  deFabiani 

(abus  de  confiance  B.  Roncayolo),  année  1879 45,  385.  00 

Intérêts 56,239.80 

7".  Rémunération  duo  pour  vapeur  Pauline,  ensuite  du  sauve- 
tage du  navire  anglais  Angel   (abus  do  confiance  B, 

Roncayolo),  année  1879 47,  653.  32 

Intérêts 59,  563.  63 

8'.  Somme  payée  i)oiir  le  compte  de  I?.  Roncayolo  et  comprise 
dans  le  montant  des  condamnations  pécuuiairen  pro- 
noncées par  le  tribunal  de  commerce  de  Marseille, 
mais  ne  faisant  pas  double  em]iloi  avec  des  sommes  dues 

en  vertue  de  la  transaction  de  1878— année  1879 8, 363. 84 

Intérêts 10,  724.  38 


AWARD    OF    SWISS    ARBlïRAtOR.  155 

Francs. 
9°.  Détournement  d'une  somme  payée  par  l'Etat,  pour  vapeur 

Pauline  (voyage  de  mai  1879  á  La  Guayra) 10, 000.  00 

Intérêts 12,176.38 

10".  Détournement  d'une  somme  payée  par  l'Etat  de  Zulia 

pour  vapeur  l'auUne  (voyage  à  Coru),  année  1879 9,  100.  00 

Intérêts 11,  080.  4!» 

11".   Frais  (lu  vapeur  Pauline  employé  à  la  répression  du  l'in- 
surrection  de    Pio-Kebollo   (détournement  B.  Konca- 

yolo),  année  1880 28,000.00 

Intérêts 31,  716. 67 

12".  Intérêts  1%  par  mois  du  1'"". juillet  1879  au  31  octobre 
18S0,  per  ;us  sur  les  30,000  fr.  de  titres  détournés  par  B. 

Koncayolo  (p.  639  et  647  de  la  demande) 4,800.00 

Intérêts 5,  242. 14 

13".  Assurances  du  vapeur  Pauline  du  l*^^"^  janvier  1880  au  15 

juillet  1882,  pendant  la  spoliation 19,  333.  33 

Intérêts 19,  238.  4.5 

14».  Produi  t  net  du  remorquage  en  1880 100,  000.  00 

Intérêts 107.180.33 

15".  Produit  net  du  remorquage  eu  1881 100,  000.  00 

Intérêts 94,  453. 13 

16'.  Produit  net  du  !"■  auvier  jau  15  juillet  1882 54, 166.51 

Intérêts 48,403.73 

17^.  Somme  détournée  par  les  Eoncayolo  pour  service  des 

vapeurs,  eu  1879 42,550.00 

Intérêts 38,  023. 10 

18  '^  Somme  allome  pour  services  du  vapeur  Pauline  pendant 

l'insurrection  d'avril  et  mai  1882 28,000.00 

Intérêts , 25,  485.  07 

19".  Solde  restant  dû  sur  les  17,880  fr.  alloués  par  l'Etat  pour 

le  N-apeur  Pauline,  année  1880 9,  780.  00 

Intérêts 10,084.94 

20".  Frais  judiciaires  jusqu'au  30  juin  1882,  réduits  à 100,000.00 

Int-rêts 89,712.96 

Total  de  l'Etat  A 2, 877, 129. 10 

Déductions  i\  faire  avec  intérêts,  et  comprenant,  entre  autres, 

une  somme  de  79,536  fr.  12  relative  au  poste  No.  1  ci-dessus.  204,  954.  96 

Montant  du  compte  des  sentences 2,  672,  174. 14 

Eta^  B.  Cet  état  forme,  plus  ou  moins,  un  supplément  du  précédent;  il 

se  réfère  aussi  eu  partie  à  des  décisions  judiciaires  non  connexes  avec  la 

sentence  arbitrale,  mais  demeurées  sans  eil'et  par  la  faute  des  pouvoirs 

publics  du  Venezuela. 

Francs. 
1".  Versement  du  capitaine  Santi  non  entré  en  caisse,  année 

1878 8,  000.  00 

Intérêts 11,  385. 58 

2".  Montant  de  traites  fournies  de  Maracaïbo  et  Caracas  sous 

la  signature  de  Fabiani  et  non  versé  à  la  caisse  de 

l'agence,  année  1878 90,  701.  64 

Intérêts 128,867.36 


156  FAÜIANI    CASK. 

Francs. 

3°.  Débours  détourués  par  B.  Koucayolo,  aunóe  1879  ........  31,  009.  24 

IntiTtts 38,  545. 56 

4".  Débit  personnel  de  B.  Roncayolo  envers  l'agence  Fabiani, 

ann  '»-  1879 24,  985.  80 

Intrn-ts 30.  154.  74 

5".  Déticit  de  caisse  imputable  à  A.  Koucayolo,  31  janvier 

1879 29,  610.  44 

Intérêts 39,198.47 

6".  Prélèvements  avoués  et  illicites  de  A.  Roncayolo  31  mars 

1880 35. 136.  44 

Intérêts 43, 161.  83 

7°  Surprimes  payés  à  la  caisse  générale  des  familles,  1  ■■  oc- 
tobre 1879  et  l"-""  mai  1881,  de  4,000  fr.  l'une,  pour  les 

risques  résultant  des  voyages  de  Fabiani  au  Venezuela .  8.  000.  00 

Intérêts 9.  038.  28 

8".  5  novembre  1880,  frais  de  séjour  à  Caracas,  avec  famille. .  11,  2.')0. 00 

Intérêts 12.  2»i7.  78 

9  ".  Même  date,  frais  de  voyage  et  retour  avec  famille 18,  000.  00 

Intérêts 19.  629.  38 

10".  31  août  1880,  frais  de  voyage  et  séjour  à  Caracas,  avec 

M.Tedeschi,  en  juillet  et  août  1880 4.800.00 

Intérêts 5.  339.  63 

11".  7  novembre  1882,  frais  de  séjour  à  Caracas  avec  famille 

pendant  14  mois 37,000.00 

Intérêts 35,  317.  65 

12".  Frais  de  voyage  aller  et  retour  avec  famille,  5  novembre 

1882 18,500.00 

•       Intérêts 17,658.80 

13".  Crédits  réels  ou  supposés  faits  indnements  par  A.  Kou- 
cayolo et  dont  le  recouvrement  a  été  impossible,  année 

1880 120,  000. 00 

Intérêts 139.  657.  79 

14".  Staries  et  surestaries  de  Matlticii-Oretu/a,  du  24  mai  au  15 

août  1880,  sur  166  tonnes  de  jauge,  suivant  tarif  légal .  12,  948. 00 

Intérêts 14,535.  18 

15".  Staries  et  surestaries  du  César- Etienne,  318  tonnes,  du  24 

juin  au  1'^  octobre  1880 29,910.00 

Intérêts 32,  968. 96 

16".  Staries  et  surestaries  des  Deux- Amia,  24  juillet  au  9  oc- 
tobre 1880,  1X6  tonnes 13,  734. 00 

Intérêts 15.  105. 91 

17".  Staries  et  surestaries  des />e«x-JínÍ8, 1""  avril  au  15  juillet 

1882,  186  tonnes 18,  786.  (X) 

Intérêts Itî.  706.  92 

18".   Kemise  à  A.  Roncayolo,  5  novembre  1880 4.  800.  00 

Intérêts  5, 185. 24 

19".  Complément  de  frais  judiciaires  de  1883  :\  1886 160,  000.  00 

Intérêts 135,023.56 

20".  l'erte  des  capitaux  détenus  par  Roche  iV.  C"  <'t  montant 

des  traites  d'iuiuiigration  (assignations 2,3  mai  1877).. .  347.  814.32 

Intérêts,  y  compris  ceux  du  poste  u "  21  ci-dessous. . .  583,  716. 68 


AWAUU    Ol"    SWISS    AUHlTKATOli.  157 

Francs. 
21°.  Frais  judiciaires,  etc.  (les  intérêts  sont  portí^s  au  nunií^ro 

procèdent) 28,  000. 0<) 

Total  de  l'P:tat  H 2,  386,  451. 18 

Déductions  consenties  (avec  intérêts) 234,  304.  96 

Montant  du  compte  H 2,152,146.22 

L'Etat  C   concerne  le  service  du  remorquage;  il  se  monte, 

valeur  au  30  juin  1893,  à  la  somme  de 1,  916,  948.  35 

Le  retrait  du  service  du  remorquage  équivaut  à  une  dénégation  de  jus- 
tice, puisque  le  Gouvernement  restituait,  par  l'intermédiaire  d'un  prête- 
nom,  aux  Roncayolo,  une  source  de  revenus  annuels  considérables  que  le 
jugement  arbitral  avait  attribués  à  Fabiani.  Lé  contrat  de  remorquage 
du  7  décembre  1874  avait  été  conclu  pour  une  durée  de  dix  ans;  le  non- 
renouvellement  du  contrat,  en  1884,  ne  fut  qu'un  acte  de  représailles  dirigé 

par  les  pouvoirs  publics  contre  l'adversaire  des  Koncayoîo. 

Francs. 

p.    ,  r^        S  En  capital 4,200,00(1.00 

i.tat  JJ...  ^  j^^  intóréts 3,-544,369.12 

Les  dommages  et  intérêts  compris  dans  cet  état  correspondent  aux  sacri- 
fices faits  pour  le  maintien  de  l'industrie  do  Fabiani  et  au  gain  dont  il  a 
été  frustré.  Les  frais  gihiéraux  de  la  maison  de  Maracaïbo  étaient  de 
52,720  fr.  par  an,  soit  plus  de  350,000  fr.  pour  sept  années,  A  cela  il  faut 
ajouter,  par  172,571  fr.  93,  les  frais  généraux  de  la  maison  de  Marseille,  par 
102,660  fr.  18,  les  dépenses  personnelles  du  ménage  Fabiani,  par  589,425  fr. 
39,  le  compte  d'agios  et  intérêts,  plus  le  fret  de  plusieurs  milliers  de  tonnes 
perdu  par  suite  du  mauvais  vouloir  des  autorités,  soit  100,(X)0  fr.  au  mini- 
mum, le  déficit  de  100,000  fr.  sur  le  produit  de  la  vente  des  navires,  le 
maintien  de  l'industrie  huilière  exploitée  par  Fabiani  (au  moins  100,000 
fr.),  et  d'autres  pertes  et  sacrifices  pécuniaires  représentant  un  capital 
de  plus  d'un  million  et  demi  et  de  pri's  de  2,800,000  fr.  avec  les  intérêts 
calculés  dès  le  1"  janvier  1883.  D'un  autre  crtté,  Fabiani  aurait  pu,  dans 
des  conditions  ordinaires,  réaliser  un  bénéfice  net  de  200,000  fr.  par  au,  si 
sou  commerce  d'importation  n'avait  pas  été  arrêté  par  l'acte  délictueux  du 
7  décembre  1874  jusqu'à  la  transaction  de  1878  et  repris  ensuite  dans  des 
circonstances    particiiliirement    difficiles.      L'industrie    huilière    aurait 

rapporté,  en  outre,  près  de  200,000  fr.  par  an. 

Francs. 

p ,    ,   -,-.        S  En  capital 5,  500,  000.  00 

d  En  intérêts 2,  847,,995.  01 

Ce  poste  se  réfère  à  la  réparation  du  préjudice  immédiat  et  direct,  causé 
depuis  le  30  avril  1886,  époque  à  laquelle  Fabiani  était  prêt  à  réduire 
amiablement  ses  réclamations  aux  pertes  éprouvées,  en  éliminant  tous  les 
dommages  et  intérêts  qui  dérivaient  des  actes  de  M.  Blanco.  Celui-ci  refusa 
d'entrer  en  matière.  La  faillite  de  Fabiani  fut  déclarée  pour  non-paiement 
d'une  somme  de  70,000  fr.  au  plus,  alors  qu'on  lui  devait  des  millions  au 
Venezuela,  et  les  juges  de  Maracaïbo  allèrent  même  jusqu'à  solliciter  les 
présidents  des  tribunaux  de  première  instance  de  Paris  et  de  Marseille  de 
faire  publier  l'avis  de  faillite  dans  les  journaux  les  plus  répandus  de  ces 
deux  villes.     Cette  faillite  a  en  de  désastreuses  consi  <iuen(cs  et  le  Gou- 


158  KA  HI  AN  I    CASE. 

vernement  vénézuélien   est   responsable   des   dénis   de  Justice   qui   l'ont 
déterminée. 

Franc». 
Etat  F.  Frais  du  proci-s  international 200,  000 

Dans  cette  somme  sont  compris,  entre  autres,  les  frais  d'installation  de 
Fabiani  et  de  sa  famille,  à  Paris,  depuis  1886. 

A  ces  jtréjudices  coiiimcrciaiix  vient  s'ajouter  le  dommage  éprouvé  dan> 
l'aflairi' du  chemin  do  fer  de  la  Ceiba;  l'exécution  des  sentences  aura  i  tpernii» 
à  Fabiani  de  se  substituer,  dí'S  1881,  à  ses  débiteurs,  en  exervant  tous  lcur> 
droits  et  actions  (concession  de  la  ligne,  exploitation  de  la  douane,  etc.). 
Cette  entreprise,  i[x\e  Fabiani  eût  menée  à  bien,  a  produit,  dans  les  condi 
tious  les  plus  défavorables,  un  bénéfice  net  supérieur  à  250,0(X)  fr.  par  au; 
li;  revenu  net  a  été  de  389, 164  fr.  87  pour  l'exercice  1890  à  1891  et  il  doit  être 
aujourd'hui  de  plus  d'un  million.  Or  la  concession  était  accordée  ])our 
une  période  de  près  d'un  siècle. 

La  partie  demanderesse  récapitule  ses  états  de  dommages  et  intérêts  et 
arrive  aux  totaux  suivants,  valeur  au  30  Juin  1893: 

Francs. 

1".  Préjudices  commerciaux 22,  944,  563. 17 

2».  Affaire  de  la  ligne  de  la  Ceiba 24,000,000.00 

Total  général 46,944,563.17 

III.  Dans  sa  défense,  le  Gouvernement  vénézuélien  relève  d'abord  le  fait 
que  l'objet  du  litige  est  "le  déni  de  justice  alli'gué  par  Fabiani,  pour  non- 
exécution,  selon  lui,  de  la  sentence  arbitrale  remlu  en  sa  faveur  à  Marseille, 
le  15  décembre  1880,  homologuée  par  le  tribunal  civil  de  première  instance 
et  confirmée  par  la  cour  d'appel  d'Aix;  et  le  point  de  départ  ne  peut  être 
autre  que  l'arrêt  par  lequel,  à  la  date  du  6  juin  1882,  la  haute  cour  fédérale 
du  Venezuela  à  donné  force  exécutoire  dans  le  pays  à  la  sentence  de  la 
cour  d'appel  d'Aix." 

Or  la  sentence  arbitrale  décidait:  1",  que  l'entreprise  du  remorquage 
devait  être  mise  sous  le  nom  de  Fabiani  ;  2",  que  les  vapeurs  Eclair,  Mara, 
et  Pauline  et  tout  l'outillage  de  l'entreprise  du  remorquage  apparte- 
naient à  Fabiani;  3",  que,  pour  règlement  décompte,  André  Koncayolo 
restait  débiteur  de  Fabiani  de  la  somme  de  538,539  fr.  07  cent.  Les  faits 
antérieurs  à  la  décision  de  la  haute  cour  fédérale  du  6  juin  1882  ne 
rentrent  point  dans  l'objet  du  litige  actuel,  en  sorte  que  toute  la  (luestion 
à  trancher  tient,  eu  somme,  dans  ces  mots:  la  sentence  arbitrale  a-telle 
été  exécutée  conformément  aux  lois  vénézuéliennes,  et  la  suspension  de 
la  procédure  d'exécution  est-elle  imputable  aux  autorités  de  l'Etat  défen- 
deur, ou  à  Fabiani? 

En  particulier,  Fabiani  a  tort  de  considérer  comme  un  déni  de  Justice 
l'arrêt  du  11  novembre  1881,  émané  de  la  haute  cour  fédérale.  La  juris 
prudence  française  elle-même  reconnaît  que  l'arbitre  volontaire  étant  un 
mandataire  et  non  nu  magistrat,  cette  cinoustance  enlève  à  sa  sentence 
le  caract're  d'un  jugement  proprement  dit.  Et  si  cet  arrêt  reposait  sur 
de  fausses  appréciations  juridiques,  il  ne  faut  pas  oublier,  qu'à  la  date 
du  6  juin  1882,  la  haute  cour  déclara  les  sentences  françaises  exécutoires, 
lorsque  Fabiani  eut  déposé  en  forme  authentique  la  décision  de  la  cour 
d'appel  d'Aix  (art.  558  C.  proc.  <iv.  venez.). 

Les  clauses  du  compromis  de  Caracas,  du  7  aoftt  1880,  qui,  en  prescrivant 


AWARD    OF    SWISS    ARBITRATOR.  159 

l'exécution  immédiate  et  sans  recours  possible  au  Venezuela,  rendaient, 
d'après  la  demande,  toute  comparution  inutile  devant  la  liante  cour  fédé- 
rale, sont  manifestemeut  contraires  aux  principes  gi>uóraux  du  droit,  car 
aucun  Etat  ne  renonce,  en  faveur  des  institutions  d'un  autre  Ktat  ou  de 
conventions  entre  parties,  aux  règles  fondamentales  de  sa  l.jiislation. 
h'exeqiiniiir  doit  t'tre  ordonné,  des  lors,  suivant  la  procédure  fixée  par  la 
loi  du  pays  dans  leiinel  il  est  requis.  La  cour  avait  Tobligatiou  de  citer 
l'adversaire  de  Fabiani,  <'t,  s'il  l'exigeait,  de  l'enlendrc. 

Quant  aux  dénis  de  justice  rentrant  dans  les  termes  du  compromis,  ils 
n'existent  i)as.  L'arrêt  du  6  juin  1882  a  été  ex.'cuté;  les  tribunaux  véné- 
zuéliens ont  accordé  à  Fabiani  tout  ce  qu'il  a  réclamé;  s'il  y  a  eu  des 
retards,  c'est  qu'il  s'en  produit  dans  toute  exécution  entravée  par  un 
défeudenr  qui  chercbe  à  faire  valoir  ses  droits  ou  à  gagner  du  temps,  et 
que  Fabiani  les  a  provoqués  lui-même,  soit  par  des  récusations  intempes- 
tives, soit  par  son  ignorance  des  lois  applicables  en  l'espce;  et  enfin,  la 
sentence  arbitrale  e  été  exécutée  en  conformité  du  droit  vénézuélien,  jus- 
qu'au moment  où  Fabiani  déserta  la  procédure.  Efi'eclivcment,  le  6  juillet 
1882,  le  juge  Méndez  ordonne  l'exécution  à  Maracaïbo,  sur  re(iuêto  de 
Fabiani.  Les  Koncayolo  forment  opposition,  mais  ils  sont  déboutés  dès 
le  11  juillet,  et  le  magistrat  dispose:  "Ce  jour  étant  le  quatri>  me  depuis 
([ue  l'ordonnance  d'exécution  a  été  rendue  (art.  301  C.  proc.  civ.),  un 
mandement  sera  adressé  au  jugedu  mnnicipede  Sau-Rapbai'i  en  désignant 
les  immeubles  et  autres  objets  que  Roncayolo  p  re  et  tils  doivent  remettre 
à  Fabiani  ....  jiour  qu'il  le  mette  en  possession  des  dits  objets,  faisant 
usage  de  la  force  en  cas  de  nécessité."  Le  12  juillet,  le  tribunal  dumiini- 
cipe  de  San-Kaphai-1  met  Fabiani  en  possession  des  vapeurs  Edair,  Mara 
et  Pauline;  le  14  même  mois,  l'entreprise  du  remor([uage  jiasse  entre  ses 
mains.  Si  le  juge  de  première  instance  admit  l'appel  d'André  Roncayolo 
avec  effet  seulement  d.-volutif,  si  le  juge  supérieur  l'accueillit,  lui,  à  deux 
efi'ets,  et  si  l'exécution  demeura  naturellement  suspendue  jusqu  au  juge- 
ment sur  l'incident,  il  n'y  a  là  rien  d'illégal.  Ce  sont  les  récusations  non 
motivées  de  Fabiani  qni  ont  entraîné  des  retards,  en  arr.  tant  toute  la 
procédure  pendant  pri  s  d'une  année.  Après  avoir  tenté,  par  trois  fois,  de 
récuser  le  juge  supérieur,  ilr-cusait  encore  le  président  de  la  cour  suprême 
qui  venait  d'autoriser  son  appel  à  l'égard  de  la  sentence  prononcée  sur  la 
troisième  récusation. 

En  somme,  Fabiani  envisagea  qu'il  avait  tout  gain  à  interrompre  la  pro- 
cédure et  il  n'exerça  contre  les  juges  dont  il  tiétrit  après  coup  les  actes 
prétenduement  illégaux  et  criminels,  aucun  des  recours  donnés  par  les 
lois  nationales.  Les  erreurs  qu'il  a  pu  commettre  n'engagent  pas  non  plus 
la  responsabilité  de  l'Etat  défendeur;  l'art.  2  du  Code  civil  vénézuélien 
porte  que  "l'ignorance  des  lois  ne  dispense  pas  de  l'obligation  de  les 
observer." 

Fabiani  afiSrme  bien,  sans  preuves  sérieuses,  que  le  ¡¡ouvoir  exécutif 
fédéral  intervenait  abusivement  dans  la  procédure  d'exécution.  Mais 
c'est  lui-même  qui  sollicita  l'intervention  du  Gouvernement,  eu  se  fondant 
sur  une  interprétation  erronée  du  sec.  17  de  l'art.  13  de  la  constitution. 
La  séparation  des  pouvoirs  existe  au  Venezuela  comme  en  Suisse  et  ail- 
leurs.    Fabiani  a  été  mal  eonseilli^  ou  mal  inspiré. 

Le  10  juillet  1883,  le  fondé  de  pouvoirs  de  Fabiani  s'adresse  de  nou- 
veau à  la  haute  cour  fédérale  pour  qu'elle  enjoigne  au  juge  d  exécuter 


IfiO  B^ABIANI    CASE. 

l'arrôt  du  ti  juin  1882;  le  8  décembre,  la  cour  lait  droit  à  ces  conclusions, 
("('•tait,  au  dire  de  Tabiani,  la  condamnation  du  systi-me  de  tergiversa- 
tions inauguré  par  le  jnjije  supérieur;  s'il  en  «;st  ainsi,  il  devait  procéder 
contre  ce  dernier  en  ajiplication  de  l'art.  341  du  Code  i)éual  vénézuélien, 
sous  peine  de  perdre  son  recours.  Les  étrangers  ne  sauraient  se  réclamer 
de  privileges  (jne  les  nationaux  Ji'ont  point.  D'ailleurs,  le  19  janvier  18S4, 
le  tribunal  de  Maracaïbo  ordonne  l'exécution  des  sentences  franvaises; 
le  8  février,  le  représentant  de  Fabiani  reciuiert  l'eiub  irjio  sur  les  «Iroits 
et  actions  de  Roncayolo  dans  la  douane  et  le  chemin  de  fer  de  la  Ce.lia  ;  le 
lendemain,  le  mandataire  d'André  Roncayolo  forme  opposition,  en  allé- 
•iuant  (lue  la  haute  cour  fédérale  n'était  pas  compétente;  le  13  février, 
le  tribunal  de  première  instance  écarte  la  demande  de  l'opposant;  le  23 
eependiint,  sur  requête  d'André  Roncayolo,  la  cour  suprême  de  justice  de 
l'Etat  rend  son  arrêt  de  conflit,  et,  en  se  basant  sur  l'art.  50  C.  proc.  civ. 
venez.,  le  tribunal  suspend  l'exécution. 

Au  lieu  de  faire  trancher  le  conflit  de  compétence  par  le  tribunal 
extraordinaire  <iue  prévoit  l'art.  16  de  la  loi  du  16  mai  1^82,  Fabiani 
abandonna  la  procédure,  en  prétextant  qu'il  chercherait  en  vain  à  obtenir 
justice  au  Venezuela.  Or  la  cour  suprême  de  l'Etat  Faleon  avait  uni(iue- 
nieut  revendiqué  (cfr.  art.  89  de  la  Const,  venez.)  l'autonomie  judiciaire 
d'un  des  Etats  confédérés,  comme  elle  en  avait  le  droit;  taut  que  la  ques- 
tion de  conip.  tence  nétait  pas  résolue,  Fabiani  ne  pouvait  se  plaindre  d'un 
déni  dejustice.  Et  il  avait,  au  surplus,  la  faculté  de  rechercher  le  tribunal 
en  dommages  et  intérêts,  si  l'arrêt  de  conflit  avait  été  injustement  rendu 
(art.  57  C.  proc.  civ.  venez.  ).  A  ce  moment,  en  effet,  il  n'avait  pas  d'action 
contre  le  Venezuela,  mais  contre  la  cour  suprême  de  l'Etat  Faleon.  II 
avait  à  suivre  la  voie  que  la  loi  trace  aux  étrangers  comme  aux  nationaux  ; 
et  il  lui  était  interdit  d'exiger  une  indemnité  de  la  nation,  avant  d'avoir 
épuisé  les  recours  légaux. 

Rel.itivement  au  service  du  remorquage,  le  Venezuela  pouvait  dénoncer 
le  contrat  du  7  décembre  1874  pour  son  échéance;  ce  qu'il  a  fait,  en  dis- 
])osant  <iue  le  nouveau  contrat  n'entrerait  en  vigueur  qu'à  l'expiration  des 
dix  années  de  la  concession  antérieure,  soit  dès  le  8  décembre  1884.  L'Etat 
n'avait  pns  perdu  sou  droit  «ouverain,  parce  (lue  Fabiani  a'vait  des  contes- 
tations judiciaires  au  Venezuela  avec  des  particuliers. 

L'h,  pothèque  prise  sur  la  douane  de  Ceiba,  même  en  admettant  que 
les  droits  des  Roncayolo — au  reste,  cédés  à  un  tiers— fu.ssent  susceptibles 
■d'hypothèque,  ne  pouvait  produire  d'effets  légaux  avant  un  jugement 
rendu  sur  l'opposition  formée  par  le  gouvernement  de  la  s(  ction  de  Zulia. 
L'inscription  hypothécaire,  de  120,000  fr.,  radiée  le  3  septembre  1887,  par 
les  syndics  déliiiitifs  delà  faillite  Fabiani,  n'entre  ])lusen  ligue  de  compte, 
d'autant  plus  qu'une  inscription  résultant  d'une  sentence  étrangère  ne 
saurait  être  la  cousé(iuence  iuimédiate  de  celle-ci,  mais  seulement  de  l'exe- 
qualur  accordé  par  les  tribunaux  nationaux.  Quant  au  contiat  du  21 
octobre  1885,  Fabiani  devait  l'attaquer  au  moyen  do  l'action  paulieune, 
s'il  le  tenait  pour  frauduleux;  il  s'en  est  bien  gardé,  et  il  crie  au  déni  de 
justice  avant  mêm<!  d'avoir  saisi  les  autorités  judiciaires. 

En  outre,  la  convention  frauco-vénézuélienne  de  1885  n'est  nullement 
contraire  au  principe  de  la  non-rétroactivité  des  lois.  Conforme  à  tous 
égards  aux  lois  antérieures  (art.  10  de  la  Const.,  art.  5  du  décret  du  14 
février  1873),  elle  ne  donne  ouverture  à  l'action  diplomatique  que  lorsque 


AWARD    OF    SWISS    ARBITRATOR,  161 

les  (Strangers  oTit  (épuisé  les  recours  l(^gaux.  Le-  ministre  de  Fran'-e  à  Cara- 
cas, dans  sa  note  du  3  îio  it  1887,  <a  reconnu  "que  les  r«'cIaniations  clevises 
de  ce  chef  (pour  (l<?nis  de  justicti)  rentrent  dans  les  i)rcvisi(iiis  de  l'art.  5 
de  la  convention  du  26  novenilire  I8<S5."  Cet  acte  est,  de  i>lns,  rt^servé 
dans  le  «ornpittniis  du  24  f.  \  ricr  1891,  et,  s'il  n'ttuit  pas  applicable  à  l'af- 
faire l'abiani,  toutes  les  rdcliiniatioiisde  ce  dernier  seraient,  aux  termes  du 
décret  du  14  fivrier  \8T.),  Jnsticialiles  île  la  haute  cour  IVdrrale. 

Le  G.ouv  ernenient  d.léndi-nr  criti(|ue  ensuite  Tctat  de  dommages  et 
intérêts  de  la  p  .rtie  «leuianderesse.  La  ¡dupart  des  indemnités  réclamées 
sont  exclues  par  les  termes  m  mes  du  compromis.  Faltiani  n'est,  aa 
demeurant,  créancier,  (|ue  des  lioncayolo.  Lii  faute  des  antoiit«8  véné- 
zuéluMUifS  n'est  i»as  mieux  établie  qtie  la  res¡)onsabilit<''  «le  l'Ktat.  Tonte 
la  demiU'Ie  repose  sur  des  aÛirniatious  de  Fabiani  qui  u'ontaucnne  valeur, 
ni  en  l'ait  ui  eu  droit. 

La  déleuse  c<mclut  d  s  lors  à  ce  qu'il  plaise  à  l'arbitre  de  décider  que 
le  Venezuela  n'est  ])a8  responsable  des  domina^jes  que  Fabiani  dit  avoir 
éprouvi  s  pour  dénégations  de  justice 

IV.  Uans  sa  ri'plujue.  le  (iouvernement  demandeur  constate,  entre  antres, 
qu'il  appartieut  à  l'arbiire  de  déterminer  souverainement  le  ])oint  de 
départ  des  di'uéüafions  (le  justice  iirétendiu's  i)ar  I  altiaui,  le  ííomprouiis 
étant  rédigé  en  t.  rmes  tr  s  gén.  r;iux.  Le  diñii  de  justice  est  nettement 
détini  à  l'art.  288  du  C  peu.  vén'z.,  et  la  definition  eu  est  tres  large. 

11  convient  <le  reinarcjner  encore  que  1  arret  du  11  novembre  1881,  (|ui  est 
en  contradiction  llagiante  avec  celui  du  0  juin  1882,  ('(¡uivant  à  une  déné- 
gation de  justice  dont  les  conséquences  ont  ét<>  très  graves;  les  motifs  de 
cet  arrêt  sont  inadmissibles.  11  y  a  eu  violation  des  art.  5Ô6  à  558  C.  proc. 
civ.  véut'Z.  et  refus  d  exécution  dune  sentence  définitive  <laus  le  sens  de  la 
convention  du  26  novembre  1885.  L  arbitre,  eu  consultant  le  Diario  de 
la  haute  cour  fedérale,  pourra  vérifier  même  si  elle  a  tenu  du  12  au  31 
octobre  1881,  les  deux  audiences  prévues  par  la  loi  (art.  111,  ibid,  et  288  C. 
pén.  venez.). 

Tout  ce  que  dit  la  défense  au  sujet  de  l'opposition  des  Roncayolo  et  des 
récusations  de  Fabiani,  est  sans  concluance  au  vu  de  l'arrêt  <le  la  haute 
cour  fédérale  du  8  décembre  1883,  ([ui  déchire  que  l'exécution  des  sen- 
tences franvaises  a  été'  interrompue  par  des  recours  illégaux.  Grâce  à  des 
retards  contraires  aux  lois,  Fabiani  n'a  pu  mettre  l'embargo  sur  les  droits 
et  actions  de  ses  débiteurs.  11  a-  fallu  des  années  pour  ne  ]>as  rendre  une 
ordonnance  d'exécution,  (|ui  devait  être  prononcée  séance  tenante. 

Il  u't  tait  pas  possible  de  rechercher,  au  ])réalable,  en  responsabilité  le 
juge  supérieur  de  Maracaïbo  et  la  cour  suprême  de  l'Etat  de  Falcon, 
puisque,  depuis  pr^  s  de  quatre  an»,  Fabiani  réclamait  vainement  Vexequa- 
tiir  d'un  jugement  inatta<iuable. 

Suit  un  "état  définitif"  des  preuves  invoípiées. 

V.  Le  Gouvernement  défendeur  insiste,  dans  sa  duplique,  sur  la  circon- 
stance que  des  négociations  auxquelles  le  c(unpromis  a  <ionué  lieu  et  de 
ses  termes  mêmes  il  résulte  (¡ue  cet  a<'te  se  réf<  re  exclusivement  aux  faits 
posti  rieurs  a  l'arrêt  du  6  juin  1882.  L'arrêt  du  11  novembre  1881  était 
parfaitement  correct,  puisipie  l'homologation  de  la  sentence  arbitrale 
n'(''tait  i)as  définitive,  le  7  juin  prcMé-dent,  date  du  dt''i)é)t  de  la  recjuete  à 
fin  d' exequatur. 

En  ce  qui  concerne  le  conflit  d«!  compétence,  ni  Fabiani  lui-uunie,  ni  sa 
S.  Doc.  533,  59-1 11 


162  FABIANI    CASE. 

partie  adverse  ne  sont  adress»'  à  la  cour  de  cassatiou  ou  a  la  haute  cour 
fédérale,  pour  ])rovü(iuer  la  solutiou  du  tonllitet  ils  n'ont  pas  fourni  le 
pai)ier  timbré  uécessairo  à  la  procédure,  (|ui  a  <  té  abamlounéc. 

La  dupliiiue  i»ose  î!u  princi|ie:  (lu'il  n'y  a  jme  eu  de  déni  de  Justice,  pas 
plus  tl'apr  8  les  lois  vénézuéliennes  ipie  d'aprt-s  l'art.  5ü(i.  C.  proc.  civ.  fr., 
on  les  lois  allemande  et  suisse  ;  (¡ne  l'I^tat  n'est  point  responsaliie  des  actes 
de  ses  fonctionnaires  de  l'ordre  judieiaire,  si  cette  responsabilité  n  est  for- 
mellement consacrée  ])ar  la  loi,  et  <|ue  le  droit  vénézué-iien  ne  la  proclame 
pas,  tant  que  les  étrangers  lésés  n'ont  pas  i)orté  leurs  demandes  d'indem- 
nité devant  la  haute  cour  fédérale;  i[ue  l'intervention  diplomati<iue  enliu 
est  inadmissible,  aussi  longtemps  ([ue  les  recours  j)r('vus  par  les  lois 
territoriales  n'ont  pas  été  épuis  s. 

VI.  Par  son  ordonnance  de  juillet  1895,  l'arbitre  a  invité  le  Gouvernement 
demandeur  à  ])roduire  divers  documents  et  renseignements  complémen- 
taires, et  ])re8crit  l'audition  île  diHérents  témoins  invo<|U('s  en  di'mande. 
De  ces  témoins,  trois  seulement,  MM.  l'iuniacher,  K.  Sci.jas  et  1'.  (  tsio  ont 
pu  être  entendus,  eu  ]>r(  sence  des  jtarties,  par  les  soins  «le  M.  le  rejjrésen- 
tant  des  Etats-l  nis  d'Amérique  à  Caracas;  il  a  fallu  pris  d'une  année 
pour  recueillir  ces  t 'nioignages.  Des  ([uatre  auties  témoins,  l'un  est  décédé 
au  cours  du  proei  s,  deux  n'ont  pu  être  atteints  et  le  quatrième  a  refnsi'  de 
répondre  aux  questions  (jui  lui  étaient  posées,  vu  sa  «lualité  d'ancien  Prési- 
dent de  l'uu  des  deux  Etats  en  cause. 

Une  partie  des  documents  et  renseignements  complémentaires  reijuis  i)ar 
l'ordonnance  de  juillet  1895  ont  été  Iburnis.  11  n'a  pas  été  pris  de  conclu- 
sious  contre  l'authenticité  des  pièces  produites  depart  et  d'autre:  l'arbitre 
appréciera  librement,  en  couséciuence,  leur  valeur  ])robaute  et  leur  force 
obligatoire.  Les  «lithcultés  soulevées  ]iar  l'apport  même  des  preuves 
littérales  ont  été  écartées,  aiusi  que  cela  resort  des  déclarations  des  (iou- 
veruements  intéressés. 

VII.  La  procédure  a  été  déclarée  close  par  l'arbitre  le  21  octobre  1896. 

B. — En  droit. 

I. 

11  importe,  en  toute  premiere  ligne,  de  détenu  ner  exactement  l'objet 
du  différend  soumis  à  l'arbitrage.  Aux  termes  du  compromis  du  24  février 
1891,  la  question  litigieuse  est  de  savoir  si,  "d'après  les  hds  du  Venezuela, 
les  principes  généraux  du  droit  des  gens  et  la  conventiou  (du  26  novembre 
1885)  en  vigueur  entre  les  deux  puissances  contractantes,  le  (iouvernemeut 
vénézuélien  est  resi)onsable  des  dommages  que  Fabiaui  dit  avoir  éj)rouvé8 
pour  dénégations  de  justice."  Indé-pendamuient  même  de  l'intention  des 
parties  manifestée  durant  les  négociatious  auxciuellcs  a  doum^  lieu  la 
convention  franco-vénézuélienne  de  1885,  il  résulte  à  l'évidence  du  texte 
mèmedu  compromiset  de  l'ensemble  des  faitsde  la  cause,  (|in'  lelJouverne- 
meut  dé'fendeur  est  actionin''  uuiiiuemcut  à  raison  d»;  la  non-c^xécutiou, 
pur  les  autorités  vénézuéliennes,  du  jugement  arbitr.il  rendu  à  Mar- 
seille, en  date  du  15  dt'cembre  1880,  entre  .\ntoine  l'aliiani,  d'une  ]iart. 
Benoit  et  André-  Koncayolo,  d  autre  jtart.  L'Etat  «lemanileur  <emlile  même 
reconnaître  ([Ue  la  dém'gation  de  justice  initial»' est  l'arrêt  du  11  n<»vcinbre 
1881  {llt'})lii¡ii(',  p.  2);  et,  comme  on  la  verra  ))lus  loin,  il  est  inutile  de 
rechercher  s'il  faut  <'onsidérer  ])lutót  l'arrêt  du  11  noseiniire  1881  que  celui 


AWARD    OF    SWISS    ARBITRATOR.  163 

du  6  Jniii  1882,  comme  point  do  di'part  des  responsabilités  éventuelles 
encourues  dans  le  sens  du  coinprouiis. 

D'un  antro  côté,  la  signiticatiou  du  mot  "dénégation  de  justice"'  veut 
être  prtcis -0.  Il  convient  d'intendro  ])ar  là  totito  acte  qui  devra  être 
envi.sagé  comme  une  dcni'gatlun  do  justicti,  soit  d'apris  les  lois  du  V'^éné- 
zuéla,  soit  (l'iipri'S  les  principes  gi'néraux  du  droit  des  gens,  soit  d'après 
la  convention  du  26  novembre  18S5,  le  coiu|)romis  n'exigeant  ]>as  la 
concordance  absolue  de  ces  trois  sources  Juridifjues  ut  des  difl'íírences 
essentielles,  ou  nu"nie  notables,  n'existant  d'ailleurs  pas  entre  elles  sur  la 
matière. 

La  législation  vt'uczuclienue  ne  fournit  pas  une  définition  diiecte  de  la 
dénégation  de  justice.  Cependant  le  décret  du  1-1  février  1873,  sur  les 
droits  et  devoirs  des  étrangers,  dispose  :\  cet  égard,  dans  son  art,  5,  que 
les  étrangers  ont  le  droit  de  recourir  à  l'iutervrntion  diplomatique 
"lorsipie,  ayant  épuisé  les  recours  li'gaux  devant  les  tribunaux  citmi)éteu8, 
il  apparaît  clairement  qu'il  y  a  eu  déni  de  justice  ou  injustice  notoire."  Et 
les  art.  282  et  288  du  C.  peu.  venez.,  du  27  avril  1873,  sont  ainsi  conçus: 
"Tout  juge  exécuteur  d'une  sentence  rendue  exécutoire,  qui  refusera 
ouvertement  «le  l'aciomulir,  sera  punido  lámeme  peine  édiiti'e  par  l'article 
j)r(''cédei)t  (amende  ou  détention),  sans  préjudice  des  })oursM¡tes  aux(|uelles 
il  y  aura  lieu  de  procéler  de  ce  lait  (282).  Les  magistrats  d'un  tribunal 
agrégé  et  autres  juges  qui  n'expédieront  pas  les  alï'aires  avec  la  célérité 
presciiie  par  les  lois,  qui  ne  dicteront  point  les  ordonnances  et  sentences 
dans  les  délais  imi)artis  par  ces  nuuiies  lois,  qui  ¡jrorogerout  ou  alirégeront 
induement  les  délais  accordés  aux  parties,  ou  qui,  d'une  mani  re  quel- 
comiue,  retarderont  la  solution  des  proc^8  civils  ou  criminels,  seront  punis 
de  la  suspension  de  l'emploi  pendant  une  durée  de  un  à  six  mois"(288). 

On  peut  prétondre  (¡ue  le  décret  de  1873  ne  saurait  être  invoqué  dans  ce 
cas,  attendu,  qu'entre  la  France  et  le  Venezuela,  la  rjuestion  du  droit  à 
l'intervention  diplomatiíjue  a  été  réglée  par  la  convention  précitée  de 
1885.  En  vérité,  nu  acte  international  a  été  substitué,  sur  ce  i)oint,  à  une 
loi  purenu'ut  nationale  (crf.  art.  10  de  hj,  Const,  venez,  de  1881),  et,  bien 
que  le  comiirouiis  n^serve  l'appliitation  des  lois  vénézuéliennes,  il  ne  vise 
que  celles  de  ces  lois  opposables  au  Gouvernement  demaiuleur;  or,  celle 
de  1873  a  été  moditiée,  pour  les  ressortissants  fran.ais,  dans  sou  art.  5  du 
moins,  par  une  convention  jtostérieure,  obligatoire  pour  les  deux  Etats 
signataires  du  compromis 

S'il  en  est  ainsi,  la  seule  détinition  dont  il  est  possible  de  tenir  compte, 
eu  droit  vénézuélien,  est  celle  des  art.  282  et  288  <le  Code  ¡jénal  de  1873, 
qui  assimilent  à  une  dénégation  île  justice,  tout  faits,  d'une  autorité  judi- 
ciaire, constituant  un  refus  d'exécution  d'une  sentence  rendue  exécutoire, 
un  rétard  illégal  dans  l'expédition  des  affaires,  un  défaut  de  prononcer  les 
ordonnances  et  sentences  dans  les  délais  fixés,  une  prorogation  ou  une 
réduction  indue  des  délais  établis  par  la  loi,  ou  encore  tout  retard  quel- 
conque apporté  à  la  solution  d'un  procès.  Les  refus  d'exécution,  l'inob- 
servation de  délais  pércmptoires  et  les  retards  illégaux  qui  peuvent  être 
re])rocbés  aux  juges  dans  l'exercice  de  leurs  fonctions  sont  donc  les  trois 
ordres  <le  faits  carai  ti  ristifjue  de  la  dénégatiou  de  justice,  dans  la  législa- 
tion du  Venezuela. 

La  convention  du  2tj  novembre  1885  porte!  ce  <iui  suit,  en  son  art.  5:  "Afin 
d'éviter  à  l'avenir  tout  ce  qui  i)ourrait  troubler  leurs  relaticns  amicales, 


164  FABIANI    CASE. 

les  hautes  parties  contractantes  conviennent:  que  leurs  représentants  diplo- 
matiques n'intervieiulrout  point  «u  iiiatii-re  de  if'clauiiitions  ou  de  plaintes 
des  particuliers  dans  les  a  lia  i  res  (jui  sont  de  la  couipc'teme  de  la  Justice  civilt; 
ou  pcnale,  couformi'iueut  aux  lois  locales;  à  moins  cependant  «¡u'il  ne 
s'agisse  de  di'U  i  de  justice  ou  tie  retard  dans  la  ]iroiiduri-  contraire  à  la 
coutume  ou  a  la  loi,  ou  d'iuexccutiou  d'un  arr«'t  déliuitil",  ou  eulin  de  la 
violation  évidente  des  traiti-s  ou  des  règles  du  droit  des  gens,  nuilgic 
raccoinplissement  do  toutes  les  formalitt's  li'gales."  On  a  jiaru,  dans  la 
demande  tout  au  moins  contester  l'applicabiliti'  de  la  dite  t-onveution  au 
litige  actuel,  en  invoquant  le  principe  de  la  uon-rctroactivité  des  lois  et 
en  rappelant  que  l'affaire  Fabiani  remonte  à  une  période  antérieure  à  la 
date  du  26  novembre  1885.  Mais,  en  l'espèce,  ce  n'est  point  Fabiani  per- 
sonnellement qui  est  partie  au  procès;  l'arbitrage  est  conclu  non  ]»as 
entre  lui,  mais  entre  la  Républifiue  Franvaise  et  le  Venezuela.  LEtat 
demandeur  est  lié  ))ar  l'acte  international  susmentionm',  pour  toutes  les 
interventions  diplomatiíjues  à  venir.  Au  demeurant,  la  convention  est 
expressément  reconnue  applicable  à  la  présente  contestation  par  le  com- 
promis du  24  f.'vrier  1891;  elle  fait  loi  entre  les  deux  i)ays. 

Une  déhnition  directe  du  déni  de  justice  n'est  point  donnée  par  l'art.  5 
de  la  Convintion  l'ranco-vénézuélienne;  le  texte  le  signale  seulement 
p:irmi  les  causes  d'une  intervention  <Iiplomati(|ue,  et  on  ])ouiTait  nu-me 
croire  qu'il  le  distingue  en  (|Uel(iue  sorte  des  antres  canses  d'intervention — 
retards,  inexécution  d'un  arrêt  détinitif,  etc. — ou  qu'il  l'eu  sépare  nette- 
ment. Mais,  sans  qu'il  soit  besoin  d'examiner  si  les  parties  ont  employé, 
dans  le  compromis,  l'expression  de  "  dénégation  de  jnstiie"  comme  equiva- 
lent exact  du  terme  de  déni  de  justice,  qui  est  généralement  adopté  ])ar  la 
l'gislation,  la  jurisprudence  et  la  doctrine,  il  est  permis  d'aflirmer  (¡ne 
l'art.  5  ci-dessus  assimile  pleinement  au  déni  de  justice,  (piant  à  leurs  etVets, 
les  retards  ill'gaux  de  procédure,  l'inexécution  d'arrêts  d(-tinitils,  les  \  lo- 
latious  ilagrantes  du  droit  commises  sous  I'ajjparcnce  de  la  légalité;  dans 
tous  ces  cas,  l'intervention  dij)lomatique  est  déclarée  admissible,  pourvu 
qu'il  s'agisse  d'afiaires  rentrant  dans  "  la  compétence  de  la  justice  civile 
ou  pénale."  La  condition,  posée  par  le  décret  de  1S73,  de  l'éijuisement  des 
pourvois  b'gaux  devant  les  tribunaux,  n'est  jias  rap])eli  e  dans  la  Conven 
tlon  de  1885,  et  il  serait  excessif  de  dire  que  l'art.  5  in  fuie  do  cet  acte  inter- 
national ("malgré  l'accom]>lis^ement  do  tontes  les  formalités  légales'"  )  se 
rapporte  aux  actions  en  responsabilité  dirigées  contre  les  autorités  fau- 
tives; ces  "formalités  légales"  s'entendent  de  celles  à  l'observation 
desquelles  est  subordonné  l'accomplissement  de  l'acte  judiciaire  qui  i>eut 
avoir  déterminé  nu  déni  de  justice,  ou  l'une  des  antres  causes  de  l'inter- 
vention diplomatique;  elles  sont,  par  conséijuent,  autt-rieures  au  déni  de 
justice  lui-même. 

En  consultant  les  principes  généraux  du  droit  des  gens  sur  le  déni  de 
justice,  c'est-à-dire  les  règles  communes  à  la  ])lnpart  des  législations  ou 
enseignées  i)ar  la  doctrine,  on  arrive  à  décider  que  le  di-ni  de  justice  corn- 
l)reud  non  seulement  le  refus  d'une  autorité  ju<liciaire  d'exercer  ses 
fonctions  et,  notamnuiut,  de  statuer  sur  les  rcijuetes  ([ui  lui  sont  soumises, 
mais  aussi  les  retar. Is  obstinés  dc^  sa  part  à  jirononcer  ses  sentences  (cfr. 
arrêts  du  tribunal  fédéral  suisse  des  11  juin  1880  et  7  mai  1884.  dans  le 
Journal  (J<s  Trihinuiii.r,  anm-e  1880,  p.  801,  et  aun  o  1881,  ])  402;  Code  de 
proc.  civ.  franvais,  art.  506  et  507;  Garsonnet,  Truite  tliivrique  it  prati(]n; 


AWARD    OF    SWISS    ARBITRATOR.  165 

de  procédure,  vol.  I,  p.  225  et  229;  line,  Commentaire  théorique  et  pratique  du 
Code  civil,  vol.  I,  n"  180;  HoltzcudorlV,  Rechtalexikon,  article  "  Kechtsver- 
weigcriing;"  Wctzcll,  System  des  ordentlitheu  Civilproccsnes,  5"'"^^  éd.,  p.  815 
et  463;  Labaiid,  Das  Staatarecbt  des  Deutschen  Reiehs,  vol.  II,  n""  242  et  243: 
Holtzendorff,  Ilandhuch  dea  Vülkerrechts,  vol.  II,  p.  74  ct  note  5  p.  75). 

En  róalité,  los  puissances  compromettantes  semblent  avoir  vouln  attri- 
buer anx  mots  "dénógations  dejnstice''  leur  siguilicatioii  l;i  plus  (-tendue 
{justitia  denegala  vel  protracta)  et  y  faire  renti'or  tons  les  actes  d'an  toritos 
Judiciaires  inipliipiant  un  refus  direct  <ui  di'guisé  de  rendre  la  jnstico.  An 
lien  de  reproduire  textuellement  les  t(^rmes  de  la  (îonvention  de  1SS5,  elles 
ont  choisi  nue  formule  góm'rale  embrassant,  dans  les  limites  de  ladite 
Convention,  les  griefs  judiciaires  de  Fabiani  (M)ntre  le  Vénóznóla,  griefs 
qui,  s'ils  sont  fondas,  ont,  en  partie  du  moins,  la  porti^e  de  dénis  de  justice, 
tant  d'apri'H  l'art.  5  de  cet  acte  international,  (jue  d'après  les  lois  vóuézud- 
lienncs  et  le  droit  des  nens.  Ce  sont,  etfecti\emeiit,  l(!s  réclanuitions  de 
Fabiani,  communiquées  à  son  gouvcruemt'nt,  qui  devaient  inspirer  la  rédac- 
tion du  compromis;  et  la  mission  de  l'arbitre  consiste  précisément  à 
décider  si  le  Venezuela  est  ''responsable  des  dommages  que  Fabiani  dit 
avoir  éprouvés  pour  dénégations  de  justice." 

Il  n'est  pas  douteux,  qu'à  l'époque  o  i  le  compromis  a  été  signé,  les  récla- 
mations de  Fabiani  reposaient,  entre  autres,  à  la  fois  sur  des  dénis  de  jus- 
tice sensu  stricto,  et  sur  d'autres  faits,  tels  que  les  dénis  de  justice  sensu 
lato  indiqués  dans  la  Convention  de  ISSl.  Et  l'Etat  défendeur,  après  avoir 
cité  nue  nofe  du  3  août  1887,  où  la  légation  fran^aise  à  Caracas,  réduisant 
les  prétentions  de  Fabiani  à  "  ce  qu'elles  comportent  en  droit,"  tout  en 
réservant  "le  surplus,"  et  invoquant  à  l'apjmi  de  sa  demande  en  dommages 
et  intérêts  le  "refus  d  exécntion  des  sentences,"  ainsi  (|ue  le  défaut  "d'ex- 
écution des  sentences  en  temps  utile,''  —  l'Etat  défendt'ur  ajoute  ceci: 
"  Le  Gouvernement  du  Venezuela  trouva  sans  fondement  les  prétentions  de 
Fabiani  à  réclamer  nue  r 'pnratiou,  parce  qu'il  n'y  avait  pas  en  déni  de 
justice,  ni  lieu  de  recourir  à  l'intervention  diplomatique"  {Défense,  p.  3). 
Ainsi,  l'objet  du  différend  et  ses  origines  sont  reconnus  des  parties;  c'est 
pour  refus  d'exécution  du  jugement  arbitral  du  15  décembre  1880  que 
Fabiani  possédait  contre  deux  débiteurs  domiciliés  au  Venezuela,  ou  pour 
défaut  d'exécution  par  suite  de  l'admission  de  moyens  illégaux,  que  la 
France  a  pris  en  mains  les  intérêts  de  son  national.  Le  Gouvernement 
vénézuélien  coutt'ste  le  droit  de  son  adv"ersaire  de  l'actionner  en  responsa- 
bilité, non  point  parce  qu'il  n'envisagerait  pas  lesfaits  judiciaires  allégués 
par  Fabiani,  s'ils  étaient  vrais,  comme  emportant  des  dénis  de  justice, 
mais  ])arce  qu'il  voit  l'absence  de  dénis  de  justice  dans  l'inexactitude  de 
ces  faits  on  dans  la  désertion  de  la  procédure  avant  l'épnisement  des 
recours  légaux.  Les  parties,  en  s'appnyant,  dans  le  traité  d'arbitrage,  sur 
la  Convention  de  1885,  ont,  quoiqu'elles  ne  parlassent  an  compromis  que 
de  "dénégations  de  justice,"  considéré  (jue  l'arbitre  pouvait  retenir  comme 
des  éléments  du  procès  les  faits  rentrant  dans  le  cadre  de  la  convention 
prérappelée  et  constitutifs  de  dénis  de  justice  en  droit  vénézuélien  comme 
d'apr  s  le  droit  des  gens:  de  l'avis  même  des  intéressés,  dealers,  et  confor- 
mément aux  textes  applicables,  les  dénégations  de  justice,  dans  le  sens  du 
compromis,  s'entendent  de  tous  refus  directs  ou  déguisés  déjuger,  de  tons 
retards  de  procédure  illégaux  et  de  toutes  inexécutions  d'arrêts  définitifs, 
moyennant  que  ces  faits  concernent  des  affaires  de  la  justice  civile  ou  pénale, 


166  FABIANI    CASK. 

soient  imputables  à  des  auloritéx  judiciaires  du  Véni^zuóla  et  se  soient 
produits  "malgré  l'accomplissement  de  toutes  les  formaliti's  léfiales''  par 
la  partie  lo'sre. 

En  revanche,  le  V(5n(5zu<^Ia  n'encourt  aucune  rcsponsabilit»',  selon  le 
compromis,  :ï  raison  de  faits  ctran^icrs  aux  autoriti  s  Judiciaiii-s  de  l'Ktat 
défendeur.  Les  réclamations  que  le  demande  fonde  sur  des  "faits  du 
prince,''  qui  sont,  soit  des  changements  de  législation,  soit  des  actes  arbi- 
traires du  pouvoir  exécutif,  sont  absolument  sous  traites  à  la  décision  de 
l'arbitre,  qui  élimine  de  la  procédure  ti»us  les  allégués  et  nmyensde  preuve 
y  relatifs,  en  tant  (ju'il  ne  pourrait  ])îis  les  retenir  en  vue  d'établir  d'autres 
faits  eimcliiants  et  connexes  relatifs  aux  dén  gâtions  de  justice. 

II.  Ce  sont  bien  les  dénégations  de. justice,  commises  au  cours  de  la  pro- 
cédure d'exécution  de  la  sentence  arliilrale  du  15  décembre  1880,  et  l'ap- 
préciation éventuelle  de  leurs  conséiiuences  pécuniaires,  qui  forment 
l'objet  du  litige  actuel.  11  est  cependant  u<  cessaire  de  relever  encore  nne 
objection  de  la  demande. 

La  situation  judiciaire  de  Fabiani  au  Venezuela  fut  liquidée,  d'abord, 
par  la  transaction  du  ;S1  janvier  1878.  Après  une  s  rie  d'incidents 
Fabiani  renonçait  au  bénéfice  de  cet  acte  et  signait  le  compromis  qui  a 
donné  naissance  à  la  sentence  arbitrale  du  15  décembre  1880.  La  partie 
demanderesse  a  exposé  qu'elle  avait  adhéré  à  ce  compromis  sous  l'empire 
d'une  force  majeure  et  qu'il  ne  couvrait  pas  les  dénégations  de  justice 
antérieures.  Mais  elle  reconnaît  sans  détour  {demandf,  p.  142  et  s.)  que 
Fabiani,  (jui  aurait  pu  faire  casser  le  compromis  par  les  tribunaux  français, 
préféra  réserver  l'avenir  de  son  commerce  au  Venezuela  en  «épuisant  tons 
les  moyens  de  conciliation  ;  Fabiani  se  contentait  ainsi  de  !'(  tat  de  choses 
créé  i)ar  l'acceptation  de  la  juridiction  arbitrale,  et  d'ailleurs,  depuis  ce 
moment,  ses  efforts  jn.iiciaii es  au  Venezuela  tendirent  uniquement  à  l'exé- 
cution du  jugement  du  15  décembre  1880.  Le  motif  tiré  de  la  vis  major, 
qui  aurait  affecté  le  compromis  de  1880  et  qui  reculerait  le  point  de  départ 
des  dénégations  de  justice  comprises  dans  la  présente  instance,  ne  saurait 
donc  être  pris  en  considération.  Des  dénégations  de  justice,  en  vertn 
desquelles  il  serait  ]»os8Íble  de  rechercher  le  Venezuela  en  responsabi  ité 
devant  l'arbitre,  n'ont  i)u  se  jiroduire  avant  l'introduction  delà  procédure 
d'exécution  de  la  sentence  du  15  décembre  1880,  soit  avant  le  7  juin  1881, 
date  de  la  demande  d'cseqnaiur  formée  auprès  de  la  haute  cour  féd<  raie. 

Aussi  l'arbitrti  n'a-t-il  pas  admis  à  la  preuve,  outre  les  "  faits  dn  prince,'' 
tous  les  faits  étrangers  à  l'inexécution  et  aux  effets  de  l'inexc-cution  de  la 
sentence  prérappelée? 

III.  La  procédure  d'exécution,  introduite  par  Fabiani  au  Venezuela, 
remonte  aux  premiers  jours  du  mois  de  juin  1881  ;  interrompue  à  plusieurs 
reprises  par  des  incidents  divers,  elle  fut  di-finitivenuMit  suspendue  ¡¡ar 
l'arrêt  de  conflit  du  23  f'vrier  1884  et  l'inaction  du  tribunal  extraordimiirc 
chargé  par  la  loi  de  trancher  la  question  de  compétence  (¡ne  souleva  la 
cour  suprême  de  l'Ftat  <le  Falcon,  eu  sorte,  qu'à  cette  heure,  la  sentence 
arbitrale  du  15  décembn;  1880  n'est  point  exi  entée.  Les  dénégations  «le 
justice,  dont  Fabiani  peut  avoir  été  victime,  ont,  en  conséquence,  dû  se 
produire  dejmis  le  commencement  de  juin  1881  juscpie  dans  les  premiers 
mois  de  l'année  1884. 

C'est  par  une  reiiuête  h  fin  iVejCíiuatur  dos  3  et  7  juin  1881  (pie  Fabiani 
accomplit  le  premier  acte  de  sa  procédure;    celle-ci  n'était,  suivant  la 


AWARD    OF    SWISS    ARBITRATOR.  167 

demande  (p.  165),  qu'une  "simple  formalitf'."  Assurément,  le  compromis 
d(î  1880  stipulait  (pie  la  sentence  (|iii  ««-rait  rendue  par  les  arljitres  devien- 
drait immédiatement  exé<'utoire  au  Vt'uczuila,  sans  qu'on  piit  admettre 
contre  elle  aucun  recours.  Mais  les  conventions  des  parties  ne  peuvent 
di^roger  à  des  rifóles  d'ordre  public,  comme  le  sont  celles  rclaiives  h 
l'excciition  de  jugements  étranjîcrs;  cette  matii're  se  rattaciie  à  la  souve- 
raineti',  et  les  principes  (¡ni  la  rcjíissent  sont  du  droit  le  pins  strict  (cfr. 
Calvo,  Le  droit  international  théorique  et  pratique,  5"'*  éd.,  vol.  Ill,  p.  36(i). 
A  d'antres  égards,  ce  sont  les  lois  territoriales  (jui  déterminent  exclusive- 
ment les  formalités  et  conditions  nécessaires  pour  obtenir  l'cjef/waÎM)'.  Ces 
formalités  et  conditions  se  trouvaient  ñxées,  en  l'espèce,  ]>ar  les  art.  557 
et  558  C.  proc.  civ.  venez.,  et  en  particulier,  par  l'art.  5.^8,  ainsi  conçu: 
"Pour  que  la  sentence  soit  déclarée  exécutoire,  il  faut  citer  le  dixième 
.¡our  la  personne  contre  laquelle  la  sentence  a  été  prononcée,  et  (lue  les 
j)arties  soient  admises  à  discuter  verbalement,  en  audience  ])nbli(]ne,  ce 
([u'elles  croient  (;onvenable  i)our  la  défense  de  leurs  droits.  La  ])artie  (jui 
introduit  l'affaire  doit  présenter  la  sentence  en  forme  authentique.''  C'est 
à  tort  (jue  la  demande  criti<ine  la  proc(''dure  suivie  par  la  haute  cour 
fédérale,  à  la(iuelle  s'était  adressé  Fabiani  et  qui  a,  de  par  l'art.  556  C.  proc, 
civ.  venez.,  "fonction  de  donner  force  exécutoire  aux  sentences  rendues 
par  des  autorités  étrangères;"  la  haute  cour  avait  l'obligation  de  citer  et 
d'entendre  les  adversaires  de  Fabiani,  nonobstant  les  termes  du  compromis 
de  1880,  et,  ce  faisant,  elle  ne  s'est  point  rendue  coupable  d'une  dénégation 
de  justice. 

II  n'est  pas  possible  non  plus  de  voir  un  déni  de  justice  dans  la  décision  sur 
incident,  du  27  septembre  1881,  car  le  fond  de  la  contestation  n'était  pas 
abordé  et  il  n'y  a  pas  de  contradiction  insoluble  entre  elle  et  l'arrêt  du  11 
novembre,  ni  dans  la  circonstance  que  la  hante  cour  n'a  pas  siégé,  du  14 
octobre  1881,  jour  de  la  clôtuie  d(is  débats,  jusiju'au  31  même  ujois,  l'art. 
111  C.  proc.  civ.  venez,  ne  prescrivant  aux  juges  de  rendre  leurs  sentences 
dans  les  deux  jours  à  comjjter  de  celui  oîi  ".sont  terminés  les  exi)osé8  des 
parties,"  que  "sous  réserve  de  dispositions  spéciales,"  auxquelles  il  a 
fallu  recourir  {Annexe  I,  de  la  défense,  p.  20  et  s.). 

L'arrêt  du  11  novembre  1881  ne  constitue  pas  davantage  un  déni  de  jus- 
tice, un  refus  déguisé  de  statuer.  Fabiani  s'adressait  à  la  haute  cour 
fédérale,  pour  qu'elle  décl.irât  exécutoire  au  Venezuela  l'ordonnance  du 
président  du  tribunal  de  première  instance  de  Marseille,  du  21  décembre 
1880,  mise  au  pied  de  la  sentence  arbitrale  du  15  même  mois.  Benoit  et 
André  Roncayoio  contestaient  la  compétence  de  la  cour  et  la  valeur  juri- 
dique de  l'ordonnance  du  juge  fran(,íaÍ8.  Au  moment  même  où  la  procé- 
dure d'exécution  fut  introduite  par  Fabiani,  celui  ci  nt;  possédait,  ni  ne 
]»ouvait  posséder,  une  copie  authentique  du  jugement  définitif  dont  il 
requérait  l'exécution,  puisque  l'ordonnance  du  21  décembre  1880,  portée, 
])ar  voie  d'ojiposition  devant  le  tribunal  de  premii  re  instance  de  Mar- 
seille puis  confirmée  le  l""  avril  1881,  mais  déférée  aussitôt  apris  a  l'in- 
stance supérieun^  ne  devenait  définitivi^  que  par  l'arrêt  de  la  cour  d'appel 
d'.\ix  du  25  juillet  de  cette  dernière  année. 

Aussi  longtemps  que  la  (luestion  de  la  validité  de  l'ordonnance  d'exécu- 
tion du  21  décembre  1880  restait  en  suspens,  la  haute  cour  fédérale 
n'était  pas  tenue  d'accorder  Vexequatur  requis.  11  est  vrai,  qu'en  "termi- 
nant ses  plaidoiries,"  l'avocat  de  Fabiani  a  produit  une  expédition  de 


1G8  FABIANI    CASE. 

l'arrêt  rendu  par  la  conr  d'Aix  (Atmex  T.,  de  la  df^fense,  p.  18,  27,  32);  mais 
le  Gouvernement  deiiiaiulcur  n'a  mis  sous  les  yeux  de  l'arbitre  aucun  texte 
It'-gal  qui  pût  faire  cousid»  rer  ce  couiplt'iiient  du  dossier  connue  n'étant 
pas  tardif,  et  Fabiani  lui-un'uie  ne  parait  pas  y  avoir  attaché  d'impor- 
tance; etfectivement,  le  12  noveml)re  18S1,  il  ¡iriait  la  haute  cour  fédérale 
de  "donner  exécution  à  l'arrêt  de  la  cour  d'appel  d'Aix"  du  25  juillet, 
apri-e  avoir  été  débouté,  comme  il  le  rappelle,  des  lins  de  sa  re<|uête  tendant 
à  obtenir  Veseqnatnr  de  la  sentence  arbitrale  dtclar.  e  exécutoire  par  l'or- 
donnance du  21  décembre  1880.  8i  l'arrêt  d'Aix  rentrait  dans  l'objet  de  la 
décision  de  la  haute  cour  fédérale,  du  11  novembre  1881,  la  nouvelle 
requête  du  lendemain  aurait  dft  être  forcément  écartée,  attendu  qu'il  y 
aurait  eu  rea  judicata  sur  ce  point  comme  sur  les  autres;  s'il  n'y  rentrait 
pas,  la  haute  cour  n'avait  point,  le  11  novembre  1881,  l'obligaticui  d'ac- 
corder l'ejet/uatiir  à  une  .sentence  (jni  n'avait  pas  encore  la  valeur  d'un 
jugement  étranger  passé  en  force  de  chose  jugce.  l'artaut,  il  est  supertlu 
de  discuter  le  mérite  des  motils  iuvociués  à  l'appui  de  l'arrêt  précité  de  la 
haute  cour  fédc'rale,  par  la  majorité  des  membres  de  celle-ci.  Il  ne 
pouvait,  au  reste,  y  avoir  de  dénégation  de  justice  dans  le  c.is  particulier, 
spécialement  en  vertu  de  la  Convention  franco-vénézuélienne  de  1885, 
qu'autant  <iue  toutes  les  formalités  légales — soit,  notamment,  le  dépôt 
régulier  d'une  sentence  arbitrale  munie  d'une  ordonnance  (l'exécution  non 
frappée  de  recours — auraient  été  préalablement  accomi)lies  par  Fabiani; 
ce  qui  n'a  pas  eu  lieu,  ainsi  (jne  les  actes  ultérieurs  de  la  procédure  per- 
mettent <le  la  constater. 

Il  n'est  pas  indispensable  de  rechercher  si  l'arrêt  de  la  Haute  Cour  fédé- 
rale, du  6  juin  1882,  qui  décréta  lexecutiou  de  l'arrêt  de  la  cour  d'appel 
d'Aix  du  25  juillet  1881,  à  été  rendu  dans  un  sens  favorable  à  Fabiani, 
parce  qu'on  redoutait,  au  Venezuela,  que  la  (jucstion  internationale  ne  fût 
posée.  Cette  décision  n'imi»li(iue  éviileminent  aucune  dénégation  de  jus- 
tice; mais  il  convient  d'examiné  si  ses  efiêts  n'ont  pas  été  compromis  d'une 
manière  illicite  par  les  autoriti  s  judiciaires  de  l'Etat  défendeur. 

Certains  faits  exposés  en  demande  (p.  285  et  s.)  laissent  supjioser  que 
l'arrêt  du  juin  188-'  n'aurait  donné  qu'en  apparence  gain  de  cause  à  Fabiani 
et  qu'on  se  réservait  de  rendre  illusoire,  à  Maracaïbo,  où  elle  devait  être 
exécutée,  la  décision  de  la  hante  cour  fédérale.  Mais  ces  faits,  que 
devaient  prouver  les  déclarations  de  MM.  Palacois  et  Kojas  l'aiil,  ne  sont 
pas  établis,  l'un  des  témoins  ayant  refusé  de  répondre  et  l'autre  n'ayant 
pu  être  atteint. 

Quoi  qu'il  en  soit,  la  série  des  dénégations  de  justice  commence  ])resque 
dès  l'instant  oîi  Fabiani  tenta  d'obtenir,  à  Maracaïbo,  rexécntion  de  la 
sentence  arbitrale  ))ourvue  désormais  d'une  ordonnance  d'ext'7««/«r  en  due 
foruit;;  il  sied  de  remarciner,  avant  font,  que  la  défense  n'a  pas  même 
allégué  qiu'  Fabiani  n'ei.t  point  satisfait  à  tontes  les  "formalités  légales" 
prévues  ])ar  la  Convi-ntion  de  18^5,  ]iour  arriver  à  1  exécutmn  de  ses  sen- 
tences «le  la  part  des  aiitoriti's  jiiiliciaiies  auM|uelle8  il  s'est  adres^t-,  et  que 
celles-ci  n'en  ont  pas  signale  1  insnthsance  ou  l'absence. 

L  existence  de  dénég;;tions  <le  justice,  à  compter  de  cette  «'poque,  résulte, 
entre  antres,  de  l'arrêt  de  la  haute  cour  fédérale,  du  8  décembre  l.sSi, 
reconnaissant  que  l'exécution  a  été  arrêtée  p-.r  "l'admission  de  recours 
illégaux"  {Annexe  //,  de  la  delênse,  p.  187).  11  est  clair  (jue  lincident 
soulevé  à  Maracaïbo  par  la  partie  adverse  de  Fabiani,  à  savoir  que  le  juge- 


AWARD    OF    SWISS    ARBITRATOR,  169 

mont  i\  exf^ciiter  n'l'tait  pas  la  sentence  arbitrale  mais  Itien  I'arn't  de  la 
cour  d'appel  d'Aix,  "  était  certainement  alisurde,"  comme  le  dit  la  dclense 
(Duplii/iif,  p.  31);  l'autorité  judiciaire  cli.irjiée  de  l'exécntiou  aurait  dû 
passer  outre.  Mais  si  Andn»  ¡îoncayalo  est  d.  bouti- de  son  opposition,  si 
le  Tribunal  de  première  instance  au  civil  de  -Maracaïbo  refuse  de  se  récuser, 
le  même  trilmnal  n'en  accueille  pas  moins,  avec  ell'et  simplement  dévoiutif 
dabord,  l'appel  interjeté  contre  ses  décisions,  pour  le  recevoir  à  double 
eflet,  sur  l'ordre  <lu  Jujíe  sui)érieur. 

Or,  l'opposition  et  le  pourvoi  de  Rf)nca.volo  devaient  être  écartés  sans 
examen,  ainsi  (jue  la  haute  cour  fédérale  l'a  proclamé  dans  sou  arn  t  du 
H  Décembre  1883.  En  permettent  aux  adversaires  de  Kabiani  d'entraver 
sans  droit  l'exécution  des  sentences  françaises,  les  autorités. judiciaires  du 
Venezuela  ont  commis  ù  l'eneontrede  c(i  dernier  des  déiu'fiations  de. justice, 
consacrées  essentiellement  i)ar  l'admission  de  l'appel  des  lîoiicayolo  avec 
ellet  suspensif;  il  y  a  eu  refus  dt'jiuisé-  de  stateur.  Et  cette  opinion  est 
fortifiée  encore  par  le  fait  de  la  demission  du  .ju<re  Méndez  ;  il  est  au  moins 
vraisemblable  que  ce  ma<;istrat,  qui  avait  ordonné  les  ])remirres  mesures 
d'exi'cution,  se  sera  démis  de  ses  i'onctions  pour  sortir  d'une  situation 
fausse  dans  laquelle  il  ne  voulait  pas  assumer  plus  longtemps  une  part  de 
responsibililé. 

Le  défendeur  reproche  vivement  à  Fabiani  d'avoir  causé  lui-même  de 
graves  retards,  à  raison  des  demandes  de  récusation  qu'il  a  ¡¡rrsentées 
contre  le  .juge  sup  rieur.  Abstracti<m  faite  dn  bien  fondé  de  lune  au 
moins  des  causes  de  récusation  (Annexe  H,  de  la  défense,  \t.6l  et  s.  ;  elr. 
art.  59,  $  18,  et  art.  60  C.  proc.  civ.  venez.),  et  du  désir  tout  naturel  que 
devait  éprouver  Fabiani  de  ne  jias  accepter  la  justice  d'un  magistrat  (|ui, 
tout  en  se  rendant  l'auteur  dill,  galiti  s  manifestes,  s'obstinait  a  exercer 
son  mandat,  il  suíiíit  de  rap])eler  ([ue  toute  la  procrdure  était  arbitraire- 
ment arn  t  e,  contrairement  aux  vceux  de  F'abiani,  jiar  l'admi.ssion  de 
moyens  irreee\  ables;  la  faute  originaire  retombait,  en  tous  cas,  sur  les 
aiitoritii'S  judiciaires  qui  n'avaient  pas  repoussé  «  limine  de  semldables 
moyens. 

Des  mois  .se  passaient  sans  qu'il  fût  possible  à  Fabiani  d'exercer  les  droit-! 
dérivant  pour  lui  de  la  sentence  arbitrale  du  15  d  cemlire  ISf-O.  Il  solli- 
cita, sur  ces  entrefaites,  l'intervention  du  pouvoir  exécutif,  en  se  basant 
sur  la  "S  17  de  l'art.  13  de  la  Constitution,  par  lequel  l'Etat  est  tenu  "d'ac- 
complir et  de  faire  accomplir  et  exécuter  ....  les  décrets  et  ordres  que 
....  les  tribunaux  de  la  Fédération  rendraient  dans  l'exercice  de  leurs 
attributions  et  de  leurs  facultés  1.  gales."  Cette  déniarclie,  longuement 
criticiuée  dans  la  défense,  «tait  à  la  fois  ])rudente  et  correcte,  )»ui.sque 
aussi  bien  I  ordonnance  t\'exc(¡natnr  de  la  haute  cour  fédérale  n'était  pas 
resjiectée,  et  (ju'en  pareil  cas  le  Gouvernement  a  le  devoir  constitutionnel 
d'assurer  ra<lniinistration  lie  la  justice.  Si  même  la  v^  17  de  l'art.  13  précité 
n'avait  jxunt  cette  portée  et  si  l'en  se  refusait  à  voir,  avec  la  dem  iiide,  de 
la  malveillance  ou  de  l'iiiciirie  dans  la  r.  solution  du  Pouvoir  ex  ciitit  du  9 
juillet  li<.S3,  l'arr.t  de  la  hante  cour  fédérale  du  8  décemlire  suivant  pres- 
crivit la  continuation  de  la  proc  dure  d'exécution  suspendue  l'ar  des  "re- 
cours illégaux.  "  et  <li  créta  impli<itemint  (pie  toute  la  responsaldl.té  des 
retards  incombait  aux  autorités  judici.iires  (jui  étaient  entres  eu  mati  re 
sur  ces  recours.  Eu  réalité,  les  retards  considérables  éprouvés  par  le  pro- 
cédure d'exécution  sont  bien  le  fait  de  jii^es,  et  si  Fabiani  a  pu  ou  dû  en 


170  FABIANI    CASE, 

occasionner  lui-mrnie,  il  ne  serait  pas  óquitable  de  les  Ini  impntor  à  faute, 
parce  (|uil  a  tenti-  de  uiodilier  une  situation  contraire  aux  loi»,  <|ui  «tait 
l'œuvre  des  triljnnaiix  vt'nézuélieim. 

Divers  indices  donnent  à  penser  (jue  le  Gouvernement  dt-fendeiir  jirenait 
ouvertement  i>:(rti  contre  l"al»iani,et  «jue  cette  attitude  pouvait  inciter  ou 
encoiirafîer  l'autorité  judiciaire,  du  moins  dans  des  ]>ro\  inces  i  ]oi;:u<  ts  de 
la  capitale  et  soustraites  au  contrôle  d'une  oiiinion  ])ubii(|ne  vigilante,  ;i 
m<  couuaitre  les  droits  d'un  demandeur  t'trangei  :ini|uel  des  personnes 
inliuentes  de  l'Ktat  ne  méuageaient  point  leur  hostilité.  Telle  est  1  a)>pro- 
batiou  ollicielle  du  21  août  1883  donnée  à  la  cession,  consentie  i»ar  B. 
Koncayolo,  du  contrat  de  chemin  de  fer  de  la  Ceiba,  bien  qu'il  fût  notoire 
au  Venezuela  que  cette  cession  avait  pour  but  de  diminuer  ou  d'anéantir 
les  gages  d'un  créancier;  telle  parait  être  encore  la  modification  adoptée 
par  la  législation  de  l'Etat  Falcon  aux  art.  ñ  et  7  de  la  loi  organi<|ue  du 
pouvoir  judiciaire,  en  Janvier  ISSSj  tel  sera  aussi  le  retrait  du  service  du 
remoriiuage  qui,  dans  les  circonstances  et  à  l'époque  où  il  fut  décidé,  devait 
être  interprété  comme  un  acte  de  représailles  dirigé  contre  Fabiani. 

Une  nouvelle  dénégation  de  justice,  du  caractère  le  jdus  grave,  allait  se 
produire.  Le  juge  de  première  instance  de  Maracaïlto,  se  conformant  ;\ 
l'arrêt  de  la  haute  cour  fédérale  du  8  décembre  1883,  avait  ordonné  la 
continuation  de  le  procédure  d'exécution,  lors(|ue.  le  9  février  1884,  André 
Roneayolo  demande  que  le  dossier  fût  transmis  à  la  cour  sujjrême  de  l'Etat 
Falcon,  qui,  seule,  était  investie  légalement  de  la.  juridiction  en  la  matii  re. 
Cette  re<)uète  fut  repoussée,  mais  Koncayolo  saisit  directement  la  lour 
suprême;  celle-ci,  par  arrêt  du  23  du  m¡  me  mois,  et  d'oiBce,  "décida,  en 
représentation  du  pouvoir  judiciaire  de  l'Etat  Falcon,  de  contester,  comme 
elle  le  fait  dès  à  présent,  à  la  haute  cour,  par  devant  la  cour  de  cassation, 
constituée  en  la  forme  susmentionnée,  la  compétence  deconnaitie  dans 
l'attaire  de  l'exécution  de  la  sentence  de  la  cour  d'api)el  d'Aix,  rendue 
exécutoire  au  Venezuela,  dans  la  cause  poursuivie  par  Antoine  Fabiani 
contre  André  et  Benoit  Koncayolo." 

Cet  arrêt  de  conflit  suspentlait,  une  fois  de  i)lns,  le  cours  de  la  procédure. 
Il  se  tondait  sur  l'art.  88  de  la  Constitution  du  27  avril  1^81,  disposant 
que  "tontee  qui  n'est  pas  expressément  attribué  à  la  l'Administration 
générale  de  la  Nation,  par  cette  constitution,  est  de  la  compétence  des 
Etats."  L'autonomie  judiciaire  des  Etats  qui  fout  partie  de  la  Fédération 
vénézuélienne  n'existe  toutefois,  d'ajjrès  ce  texte,  qu'autant  qu'elle  n'est 
pas  restreinte  par  la  Charte  du  pays.  Mais  elle  est  limitée,  notamment, 
par  le  '^  17  déjà  cite  de  l'art.  13  de  la  Constitution,  par  les  art.  5.")6  et  suiv. 
du  code  de  procédure  civile,  qui,  bien  (|ue  promulgués  antérieurement, 
n'ont  été  abroges — le  gouvernement  défendeur  le  reconnaît  d'une  luauière 
implicite — ni  foiniellem»int,  ni  virtuellement,  par  celle-ci,  et  ])ar  la  loi  con- 
stitutiiumelle  du  2  juin  1882  relative  à  l'organisation  de  la  haute  cour 
fédérale  (cfr.  Const,  du  27  avril  1881,  art.  80,  chilfre  11). 

C'est  bien  aussi  la  doctiine  consacre  e  ¡«ar  la  haute  cour,  dans  ses  deux 
arrêtsdut)  juin  1882  et  du  8  décembre  18S3,  ainsi  (¡ne  |iar  le  (iouverne- 
ment  dans  sa  résolution  du  9  juillet  de  cette  dernière  anui  e.  .\ssur<  ment, 
une  minorité  des  membres  de  la  hante  cour  oi)ina,  et  la  (léfense  a  lejiris 
son  argumentation,  (pie  la  compétence  de  ce  tribunal  cessait  dès  le  mo- 
ment oîi  il  avait  accordé  Yexetinatnr  aux  sentences  franvaises.  Cette  théo- 
rie, cependant,  est  contredite ^ar  la  loi  organii^ue  du  2  juin  1882,  qui 


AWARD    OF    SWISS    ARBITRATOR.  171 

porte  en  son  art.  8,  olnlVre  11,  que  la  haute  coiir  a  iiiissiou  de  "provo(|n(  r 
la  plus  ])r()iiii)tt;  administration  de  la  jnstice — sans  doiito  anssi  do  la  jus- 
tice (¡n'elle  est  apiiellée  à  ])ií)noncer— aliti  ([u'ello  soit  strictement  rendue 
pai- les  .jiifîeset  les  tribunaux  nationaux  iiiierieurs  "  (cfr.  ladite  loi.  art. 
IH,  cliilVres  4  et  ï>,  art.  ñ,  chillre  9,  eomlñnés  avec  les  art.  55(>  et  sniv.  C. 
l)roc  civ.  veinez.).  Et  le  ministre  de  l'intérieur,  par  sa  résolution  du  !) 
Juillet  1883,  a  expressément  déclaré  (juc  "c'est  il  la  haute  cour  fédérale 
qu'il  ap])artient  de  l'aire  observer  ses  dispositions."  Au  surplus,  le  ^S  17 
de  l'art  13  de  la  Constitution  existe;  comme  les  autorités  judiciaires  supé- 
rieures, le  pouvoir  exécutif  était  averti  des  illégalités  commi.ses  et  il  n'a 
rien  fait  pour  les  empêcher,  ni  alors,  ni  plus  tard,  quoiqu'il  eût  le  devoir 
d'iissurer  l'exécution  des  "  décrets  et  ordres"  émanés  des  "tribunaux  de 
la  Fédération." 

La  partie  défenderesse  prétend  bien  que,  raisonner  ainsi,  c'est  confondre 
Verei/iialur,  matière  fédérale,  avec  l'exécution,  matière  de  la  jurisiliction 
«le  l'Etat  re(iuis.  L'exécution  est  déférée,  à  la  vérité,  aux  autorit('>s  Judi- 
ciaires des  divers  Etats  <le  la  Fédération,  mais,  en  tant  que  cliargées  de 
faire  exécuter  des  sentences  étranj>ères  ensuite  de  décisions  de  la  haute 
cour,  elles  se  trouvent  ])lacée8  sous  le  contrôle  de  ce  tribunal  et  elles  en 
apparaissent  comnieles  organes  d'exécution.  Accepter  une  thise  ditféreute 
éiinivaudrait  à  convertir  en  décrets  illu.soires  les  ordonnances  d'escqiiatitr 
de  la  haute  cour,  qui  n'aurait  aucun  moyen  dé  leur  prêter  un  effet  quel- 
conque et  ijui  remplirait  à  cet  égard  des  fonctions  de  pure  forme.  Il  est 
plus  logique,  et  il  est  dans  l'esprit  «le  la  législation  vénézui>lienue,  de  con- 
si«lérer  connue  des  Juges  et  des  tribunaux  de  la  nation,  placés  sous  la 
surveillance  de  la  haute  cour  et  agissant  sur  ses  odres  (loi  organique  de 
1882,  art.  8,  chiffre  11),  les  autoriti  s  judiciaires  auxijuellcs  est  déléguée, 
dans  les  Etats,  l'exécution  des  jugements  étrangers  {ibid.  art.  18,  chiffres 
4  et  5). 

La  cour  suprême  de  l'Etat  Falcon,  eu  soulevant  un  conflit  de  compétence 
dans  une  i)rocédure  dont  la  partie  adverse  de  Fabiani  entravait  le  cours, 
pour  un  motif  que  l'Etat  défen«leur  (jnaliiie  «le  '"certainement  absurd,'' 
a  connnis  une  di'négation  do  justice  dans  le  sens  du  compromis;  en  encou- 
ragement l'opijosition  mal  fondée  d'un  débiteur,  elle  a,  sinon  déteruiiné 
un  refus  «le  statuei-,  du  moins  piovofjue  un  retard  injustifié,  et  après  tant 
autres  faits  «le  même  nature,  la  décision  qu'elle  a  prise  a  dû  fortifier  en 
Fabiani  la  conviction  que  l'évidence  de  son  «lr«>it  ne  le  protégeait  pas  con- 
tre l'arbitraire  des  juges. 

Fabiani,  dit  la  défense,  dè.serta  la  procédure;  elle  ajoute  qu'il  ne  pouvait 
se  plaindre  de  «léuégations  de  justice  aussi  longtemps  qu'il  n'avait  pas 
<  ])nisê  ses  moyens  d'action  ju«liciaire  au  Venezuela,  et  provoqrn^  en  par- 
ticulier, une  S(dution  du  c«)nHit  de  c«)mpétence,  î)U  iuvo(|ué  les  disi)o- 
sitions  légales  «jne  i)eruiettent  de  faire  contlamner  his  magistrats  fautifs 
a  '•'rembi)urs«;r  les  douinnges  et  ]iréjudiees  caus.'s."  Mais,  d'ahonl,  si 
Fabiani  s't  tait  prévalu  de  ces  «lispositions  légales,  il  se  serait  heurté  à 
lobjectiou  que  le  tribunal  extra()r«iinaire,  autiiud  est  attribuée  la  coii- 
naissance  des  conllits  «le  compétence  et  qui  doit  les  trancher  d'ofliee, 
n  avait  pas  rentlu  sa  décision  ;  ce  tribunal  ne  s'est  d'ailleurs  jamais  riMini. 
Ensuite,  Fabiani  avait  des  raisons  de  croire  «[ue,  s'il  ne  pouvait  ol)tenir 
justice  au  Venezuela  contre  des  débiteurs  étrangers  an  pays,  il  l'obtien- 
drait moins  encore  contre  des  autorités  Judiciaires  mêmes  de  l'Etat. 


172  FAEIANI    CASE. 

L'art.  16  de  la  loi  oríjanique  de  la  cour  de  cassation,  du  16  mai,  188-, 
rèiçle  la  composition  du  Tribunal  extraordinaire  (cour  de  cassation  et 
haute  cour  fdd<^rale  sit^jjjeant  ensemble)  (|ni  avait  à  licjuider  le  coullit  de 
compétence.  Les  art.  54  et  suiv.  du  Code  de  jirocédure  civile  prescrivent 
que  "l'autorité  supérieure  que  cela  concerne  procédera  aussitñt  ([u'elle 
aura  reçu  les  actes  úvs  ju;/e8,  à  la  détermination  de  la  compétence  dans  les 
vin<it-quatre  heures,  de  préférence  ;\  toute  autre  affaire,"  et  que  "l'arrêt 
sur  la  compétence  ïera  prononcé  sans  citation  ni  mémoires."  Confornii - 
ment  à  ces  texteíí^  l'arrêt  du  23  Février  1884  ordonne  (.innexc  II,  ûe  la 
défense,  p.  338)  (|ue  "le  dossier  sera  envoyé  a  la  cour  de  cassation  et  la 
présente,  décision  notiliée  à  la  haute  cour  fôdcrale  au.r  effets  de  la  compé- 
tence proroqnee  ;"  la  cour  de  cassation  a  revu  le  dosrsier  le  24  mars  1884 
(ibid,  p.  379)  et  Fabiaui  devait  admettre  (|ue  l'arrêt  du  23  Février  avait 
été  comuinniciué  ¡miui-diatcnient  à  la  Haute  Cour  fi-<l('rale.  Il  n  est  nulle- 
ment établi,  ni  même  allégué,  dans  la  dc'fense,  que  le  tribunal  extraor- 
dinaire eût  besoin,  avant  de  pouvoir  statuer,  de  renseignements  comph - 
meutaires,  (|n'il  est  autorisé  à  réclamer  en  vertn  de  l'art.  55  du  Code  de 
procédure  civile,  ni  (ju'il  se  soit  jamais  réuni, 

La  procédure  instituée  par  la  loi  du  16  mai  1882,  et  les  art,  54  et  suiv. 
du  Code  ]»Técité,  qui  sont  applicables  en  l'esj)èco  aux  termes  de  l'art.  12  de 
la  même  loi,  est  une  procédure  d'office.  La  cour  de  cassaticm  et  la  haute 
cour  réunies  devaient  prononcer,  dans  les  vingt-quatre  heures  à  compter 
du  24  mars  1884,  sur  le  conllit  de  conipi  teuce.  En  ne  le  faisant  pas,  elles 
se  sont  rendues  coupables  d  une  déni  gatiou  de  justice  liieu  caractérizée. 

Quant  à  l'argument  du  Gouvernement  di  fendeur  (I)uj>îi(jue,  p.  50), 
d'apri  s  le<|uel  les  art.  54  et  55  du  Code  do  proc.  dure  civile  ne  seraient 
pas  applicables,  la  procédure  étant  tracée  par  l'art.  16  de  la  loi  organiíjue 
de  la  haute  cour  fédérale,  elle  est  réfi.'ée  par  l'arrêt  même  du  23  féxrier 
1884  ;  et  le  dit  art.  16  ne  corrobore  pas  davantage  cet  argument  que  h-s 
dispositions  tran  itoires  <le  la  loi  dont  il  s'agit. 

11  n'y  a  pas  lieu  d'attacher  plus  d'importance  à  un  autre  moyen  avancé 
dans  la  dui>lique:  le  tribunal  extraordinaire  dont  il  a  été  question  n'au- 
rait eu  l'obligation  de  juger,  qu'une  l'ois  que  les  parties  auraient  fourni 
"  le  papier  timbré  n^'cessaire"  {ihid.  p.  50),  La  formalité  du  timbre  exigée 
par  l'art.  16  de  la  loi  organique  du  2  juin  1882,  se  rapporte  uniquement  aux 
atiaires  traitées  devant  la  haute  cour  fédérale;  elle  di  rive  d'un  prescriji- 
tion  légale  (jui  ne  peut  être  étendue,  par  analogie,  aux  coullits  de  compi  - 
tence  défi  rés  au  Tiibnnal  extraordinaire  souvent  mentionui',  car  l'analo- 
gie, exclue  en  i)rincii>e  dans  une  pareille  materière,  l'est  forniellemeut  jmr 
la  nature  même  de  la  procudnre  déterminée  aux  art.  54  et  suiv.  du  Code  de 
procédure  civile;  on  ne  concevrait  point,  à  défaut  de  disposition  contraire 
expresse,  que  les  parties  eussent  :ï  supporter,  en  ac(|uiitenient  de  droits  de 
tinil)re,  les  frais  d'une  instance  qui  est  ouverte  d'ollice,  à  raison  du  fait  de 
juges  qui  se  sera  eut  déclarés  faussement  compétents  ou  dont  la  compt- 
tence  aurait  étt'  contestée  à  tort  par  d'autres  juges,  et  qui  se  déroule  en 
d  hors  de  toute  participation  des  plaideurs,  Fabiaui,  qui  n'a  pas  été  cité 
devant  la  cour  sujireme  de  l'Etat  Falcon,  qui  ne  pouvait  ni  ne  devait  être 
assigné  devant  le  tribunal  extraordinaire,  était  absolument  étranger  au 
conflit  de  comp.  tence;  ce  tribunal  avait  l'obligation  «le  st-atuer  tl'ollice. 
dans  les  vingt-(iuatre  heures,  sans  (jue  les  parties  eussent  à  accomplir 
quelque  diligence  ou  formalité  que  ce  fût. 


AWARD    OF    SWISS    ARBITRATOR.  178 

En  somme,  Fabiani  a  été  victime  de  plusieurs  dí^négations  de  .iustice, 
consommées  par  celle  qu'implicine  l'inaction  illégale  de  la  cour  de  cassa- 
tion et  do  la  haute  cour  fédérale;  cotte  dürni^ro  dénégation  do  .justice 
saule  sul'tisait  à  créer,  au  protit  di'  l'abiaiii,  le  droit  à  rintervoutiou  di¡)lo- 
matiquo  ot  à  lui  assurer  un  recours  en  domuingeset  inti  rets  contre  le<;ou- 
verneniont  défenilcur,  s'il  doit  être  reconnu  <iue  celui-ci  est  responsable  des 
fautes  de  ses  autorités  judiciaires  et  si  Fabiani  j)rouvo  (ju'il  a  subi  un 
préjudice  de  ce  cbel'. 

Dans  les  circonstances  qui  ont  été  exposées,  l'intervention  diploniati(|ue 
était  autorisée  déjiY  par  les  ternies  formels  de  l'art.  5  de  la  Convention 
franco- vénézuélienne  de  1885,  et  elle  navait  rien  de  contraire  aux  décisions 
de  la  doctrine  fcfr.  notamment,  Holtz(îudortf,  UaUdbuch  des  FiilkerreclitH, 
Vol.  II,  p  74;  Flore,  Droit  international  codifié,  n"  33Í)  et  340;  voir  aussi, 
Co/ CO,  op.  cit.,  Vol.  I,  n"  348;  Pradicr-Fodéré,  Traité  de  droit  international 
public,  Vol.  I,  n""  402 et  s.  ;  Blnntnchli,  op.  cit.,  n°  380).  Il  serait,  etiective- 
ment,  inadmissible  d'exiger  de  Fabiani  qu'il  eût  fait,  en  outre,  constater 
ces  dénéjiations  dejustice  notoires  par  les  tribunaux  vénézuéliens  compé- 
tents, lui  (jui,  pendant  des  années,  avait  demandé  en  vain  l'exécution 
d'une  sentence  iuattaiiuable  et  pourvue  de  {'exequatur  reciuis  par  les  lois 
territoriales,  bien  que  les  autorités  administratives  et  judiciaires  sui)éri- 
eures  de  surveillance  eussent  été  averties  des  iilégjilités  comniises.  L'in- 
exécution des  sentences  françaises,  provoijiiée  par  les  magistratures  in- 
férieures, tolérée  par  la  haute  cour  fédérale  et  le  Gouvernement,  consa- 
crée par  le  tribunal  extraordinaire,  enlevait  à  Fabiani  la  disposition  d  une 
fortune  considérable,  l'entrainait  dans  des  procès  coûteux  et  sans  issue, 
l'acculait  tiualement  à  la  faillite  et  justifiait  amplement  une  action  inter- 
nationale. 

11  semble  bien,  à  considérer  la  série  des  dénis  dejustice  dont  Fabiani 
avait  le  droit  de  se  i)laindre,  et  même  l'une  ou  l'autre  des  décisions  judici- 
aires qui  lui  donnèrent  momentanément  ;;ain  de  cause  en  apparance,  que 
ses  adversaires  étaient  protégés,  au  Venezuela,  par  des  influences  assez 
puissantes  pour  entraver  l'activité  normale  des  tribunaux  du  pays.  Cette 
hypothèse  repose,  au  surplus,  sur  trois  faits  précédemment  rappelés; 
approliatiou  othcielle  du  21  août  1883,  modification  des  art.  5  et  7  de  la  loi 
orgaui(|ue  du  pouvoir  judiciaire  de  l'Etat  Falcon,  et  retrait  du  service  du 
remorquage.  Elle  est  fortifiée  encore  par  d'autres  circonstances,  parmi 
lesquelles  il  sufidra  de  ineiitioner  les  suivantes: 

Deux  des  troix  témoins  dont  les  déclarations  ont  été  recueillies  pendant 
l'instruction  de  l'afiaire,  en  présence  des  parties,  n'ont  fourni  aucun  ren- 
seignement de  nature  à  faire  douter  de  l'impartialité  des  tribunaux  véné- 
zuéliens; mais  le  troiseme  témoin,  M.  E,-H.  Plumacher,  consul  des  Etats- 
Unis  d'Améruine  à  Maracaïbo,  qui  a  bien  été  chargé  par  interim  du  consulat 
de  France  dans  cette  ville  et  qui  fut  un  temps  le  mandataire  sp('cial  de 
Fabiani,  contre  lequel  toutefois  aucune  cause  de  suspicion  n'a  été  relevée 
et  qui  est  le  ressortissant  d'un  Etat  mm  impliqué  dans  le  litige  actuel,  a 
déposé  devant  le  ministre  d'une  nation  neutre,  charge  de  l'entendre  au  nom 
de  l'Arbitre:  qu'il  avait  "  l'impression",  (|u'en  18S0,  M.  Guzman  lîlanco 
avait  provofjue  ou  suggéré  des  démarches  destinées  à  exercer  une  pression 
sur  Fabiani,  à  l'occasion  des  démêlés  de  celui  ci  avec  les  Roncayolo;  qu'à 
ce  monunt,  "M.  Blanco  était  le  pouvoir  dans  le  pays";  ([u'il  "arriva  des 
choses  (xui  donuèreut  lieu  de  douter  l'impartialité  des  tribunaux  vénézué- 


174  FABIANI    CASE. 

liens";  qu'il  avait  "entendu  de  M.  William  Mollniann,  pr<^cMemnient  em- 
ployé dans  la  maison  lîoiicayolo,  ensuit»;  fiuidovr  du  consulat  ainóritain, 
que  M.  Guzuian  Blanco  et  Benoit  lioucayolo  avaient  des  intr-rcts  datlniros 
eusenilde  et  <ine  M.  Guzman  Blanco  aiderait  Kimcayolo  en  tnute  circon- 
stance"; ((nau  reste,  "tout  le  monde  à  Maraca.lio,  savait  cela,  et  (|u'on 
disait  conraniincnt  parmi  les  ttran^iers  que  M.  Honcayolo  gagnerait  le 
proci'8,  i)uis<|u'il,a\  ait  la  protection  de  M.  (ínziuau  Blanco";  <|u'il  est,  lui, 
témoin,  "  jiositivenicnt  convaincu  (jne  M.  Kabiani  n'«'tait  pas  bien  vu  par 
les  tribnnaux  et  autorités".  Ces  déclarations  sont  trrs  g.'m  raies,  il  est 
vrai,  et  ne  ni)osent  pas  sur  des  laits  précis  dont  M.  riumaclicr  aurait  eu  la 
perception  directe;  elles  u"en  sont  pas  moins  l'opinion  d'un  observateur 
compétent  et  dsintéressi',  eu  sorte,  qu'à  ce  titre,  elles  ne  laissent  pas  davoir 
une  réelle  valeur. 

Eutin,  la  conviction  morale  de  l'Arbitre  est  que  les  dénégations  de  justice 
qui  se  sont  jiroduiteM  à  l'eucontre  de  Kabiani  ont  un  caract  re  exceptioimcl 
de  gravité,  en  ce  ([u'elles  ne  sont  pas  la  suite  de  simples  négligences  ou  din- 
terjjrétations  erronées  de  textes  légaux,  mais  apparaissent  conune  inten- 
tionnelles. Certes,  en  droit  commun  allemand  comme  en  droit  tranç.iis 
(cfr.  ¡Vetzell,  op.  cit.,  3'"  éd.  vWo;  lioltzcndorlV,  /.V(7(t«/(Xícüíí,  article  "Pro- 
zessleitnng"  ;  von  Bar,  dans  V Eiicyklopadie  der  Hechlwisxeiisdiafl  d'I  loltzen- 
dorff,  3'""  éd.,  p.  779;  Garsonnet,  op.  cit..  Vol.  II,  v^  211  et  vol.  I  v\  5.j  in  fine; 
Aiibri/  et  Ran,  4"'«  éd..  Vol.  VIII,  §  749,  u'  2),  il  est  de  principe  fpie  le  Juge 
ne  doit  prendre  en  considération  que  les  faits  articulés  et  les  moyens  de 
preuve  invo(]ué8  par  les  parties.  Cepen<lent  la  docirine  niodcîrne  va  plus 
loin  (cl'r.  Koliler,  (lesammrlle  Beitriiije  :nm  Vi'tlpruzenn,  p.  361  et  s.;  Kncij- 
clopüdie  dcr  licchtawissenschaft,  d'Holtzendorfï",  1.  c),  et  l'on  admet,  entre 
autres,  que  les  tribunaux  ordinaires  peuvent  retenir  des  laits  assez  notoires 
pourqu':ls.jugent  inutile  d'eu  administrer  la  preuve  (C.  jtroc.  civ.  allem.  art. 
264;  cfr.  Wetzell.  op.  cit.,  vS  43  ad  note  30,  et  ^  20,  ad  notes  40  .à  43).  A  plus 
forte  raison  en  est-il  ainsi,  en  matii  re  d'arbitrage,  surtout  lorscfue  les  par- 
ties n'ont  point  prescrit  à  l'arbitre  la  i)rocédnre  à  suivre  (cfr.  \Vacli,  lland- 
hncli  dendenlHchen  Cirilprocesm'ii.  Vol.  1,  p.  73,  et  /''«c/i.f/xri/cr's  ICniHcJwidnnijen, 
I{eich8cirilpro:e-s8ordnnnfi,  Snpi)l.-Baud,  note  1  ad  art.  866,  et  notes  4  et  6  ad 
art.  867  C.  proc.  civ.  allem.) 

L'Arbitre  est  investi  d'un  pouvoir  discrétionnaire,  limité  seulement  par 
l'obligation  de  se  conformer  aux  principes  essentiels  <le  la  procédure  civile 
(Bluutschli,  Droit  international  codijir,  n'  49."));  il  n'est  ])as  forcé  de  s'en 
tenir  aux  allégués  et  moyens  de  preuve  des  j)artic8,  ni  d'indi(|uer  tous  les 
éléments  dans  lesquels  il  puise  sa  conviction,  l.a  maxime  des  d<  bats  et  le 
principe  de  la  publicité,  (jui  lient  les  juges  permanets,  et  dont  l'inobserva- 
tion jïourrait  constituer  un  danger,  ne  lient  pas  dans  la  même  mesure  un 
arbitre,  <|.ui  remplit  des  fonctions  temporaires  et  qui  est  investi  d'une  magis- 
traturi!  de  contiance. 

Spécialement,  lorsque  le  compromis  est  muet  sur  la  )|nestion  de  la  )>ro- 
cédure  à  suivre,  comme  en  l'espice,  ou  ]»ent  envisager  que.  dans  l'intention 
même  des  i)arties,  une  grande  liberté-  lui  est  laissée  (inant  au  choix  des  élé- 
ments d(uit  il  formera  sa  conviction.  Cette  conviction,  dictée  déjà  jtarles 
résultats  de  ladministration  de  la  preuve,  a  étt^  renforcée,  dans  le  sens 
mar(|ué  plus  haut,  par  l'étude  de  documents  (jue  l'Arbitre  s'est  fait  un  de- 
voir <le  consulter  et  d'apprécier  au  plus  j)rés  de  sa  conscience. 

Des  dénégations  de  justice  ayant  été  conunises,  à  l'igard  de  Fabiani, 


AWARD    OF   SWISS    ARBITRATOR.  175 

par  des  antorití^s  judiciaires  dn  Venezuela,  dans  las  cas  exposes  et  les  cir- 
constauces  relatées  ci-dessus,  il  y  a  lieu  d'exjiuiiner  si  l'Etat  défeiulenr  en 
est  responsable,  et,  dans  l'affirmative,  quelle  est  r<'tondne  <le  sa  responsa- 
bilité. 

C'est,  une  questiou  tr("^s  controversée,  en  droit  public,  que  celle  de  savior 
si  un  Etat  répond  du  ]iréjudi(;o  cau8'>  par  ses  agents,  et  spcu-ialcrneut  i>ar 
ses  autorités  Judiciaires,  à  raison  d'actes  rentrant  dans  l'exercice  de  leurs 
fonctions. 

En  France,  la  doctrine  et  la.jurispnnjence  sont  divisi'es.  I^a  .jurispru- 
dence elle-même  n'est  i)as  unanime  dans  1  Opinion,  g('néralemeut  consacrée 
toutefois,  (]ueles  lautcs  commises  par  des  fonctionnaires,  dans  les  limites 
de  leurs  attributions  légales,  n'engagent  pas  la  responsabilité  de  l'Etat, 
du  moins  d'une  nuinière  absolue  et  en  l'absence  de  lois  positives  sur  ^e 
point  (cfr.  Fuzier- Herman,  ('ode  civil  annoté,  Vol.  Ill,  ad.  art.  1)382  et  1383, 
n"*  7G7  et  suiv.);  mais  la  cour  de  cassation,  par  exemple,  a  reconnu,  dans 
un  arret  du  1^''  avril  1845  (cfr.  arrêts  des  .30  juillet  et  16  août  1877, 
ainsi  «lue  Pandevies  fraiiçaisex,  année  1896,  IV""'  partie,  p.  8,  note  1,  et  Lau- 
rent, A'ol.  XX,  n"592),  que  l'Etat,  représenté  par  les  différentes  branches 
de  l'administration  publi<iue,  est  passible  des  cond.imnations  auxiiuelles 
le  dommage  causé  par  le  fait,  la  négligence,  ou  l'imprudence  de  ses  agents, 
peut  donner  lieu.  En  tout  cas,  les  fonctionnaires  de  l'ordre  judiciaire 
n'étant  pas  tenus  de  leur  faute  légère  (cfr.  Fuzier- Herman,  op.  cit.,  Vol. III, 
ad.  art.  1382  et  1383,  n"^  505  et  suiv.  ;  Demolombe,  Vol.  XXXI,  n"  519;  (!ar- 
80)i)iet,  op.  cit..  Vol.  I,  s^  57,  notes  12  et  18),  la  responsabilité  de  l'Etat  ne 
pourrait  s'étendre  au-delà.  La  doctrine  enseigne,  de  son  côté,  {Atilnij  et 
lian,  op.  cit..  Vol.  IV,  é  447,  n">2;  Demolombe,  Vol.  XXXI,  n"63;  Bandry- 
Lacanlinerie,  Vol.  III,  n"  1352),  que  l'Etat,  représenté  par  les  divers  minis- 
tères et  administrations  publiques,  doit,  à  l'égal  de  tout  commett  int,  ré- 
pondre du  ])réjudice  occasionné  par  ses  employés  ou  agents  dans  l'exercice 
de  leurs  fonctions  ou  services,  indépendamment  de  l'existence  d'une  loi 
spéciale,  ou  encore  (cfr.  Laurent,  vol.  XX,  n'"*  419  et  s.,  444,  591  et  s.),  que  la 
responsabilité  de  l'Etat  est  exclue,  lorsque  le  fonctionnaire  agit,  non  comme 
l)répüsé  et  instrument  de  l'Etat,  mais  comme  accomplissant  la  mission  so- 
ciale ([ui  lui  est  délégui-e. 

S'il  règne,  en  France,  une  assez  fnande  incertitude,  notamment  en  ce 
qui  concerne  la  responsabilité  de  l'Etat  pour  les  dommages  causés  par  ces 
fonctionnaires  de  l'ordre  judiciaire,  et  si  cette  responsabilité  parait  plutôt 
devoir  être  déniée  en  thise  générale,  il  n'en  est  pas  autrement  en  Allemagne. 
La  ((uestiou  y  est  résolue  négativement  par  Loeniiig  (Die  Hujtnng  des 
Staates,  etc.,  92  et  s.),  affirmativement  par  H. -A.  Zachariae  {Zeilsvlirift  fur 
die  (jesammte  Staatfnvissenschaft,  année  1863,  p.  582  et  s.),  par  Stobbe  {/Jand- 
buch  des  denischen  Privatrechts,  vol.  III,  v^  201,  N".  6),  par  G'îrber  (firundziifje 
des  deutschen  Staatarechts,  2""=  éd.,  p.  207  et  s.  ),  ])ar  Bluntschli  Cop.  cit.,  n"  467), 
par  Wiudscbeid  {Pandeclten,vo\.  II,  v>  470,  note  4;  cfr.  les  auteurs  cités  dans 
cette  note\  avec  cette  réserve  que  Wiudscbiùd,  dans  la  sixiinie  édition  de 
son  traité,  expose,  en  modifiant  son  opinion  premiere,  que  la  responsabilité 
de  l'Elat,  ensuite  de  préjudices  imputables  à  ses  fonctionnaires,  n'est  pas 
un  principe  de  droit  commun  en  Allemagne,  et  que,  d'après  Holtzentloiff 
{Encijklopiidic  der  UecUt'Uvisxeiiseliafl,  p.  1113),  cette  res])<>nsabilité  n'est 
admissible  (¡ne  dans  certains  cas.  Mais  la  jurisprudence  allenuinde,  (|ui 
était  plutôt  favorable  à  la  solution  affirmative  jus(ju'en   1884,  applique 


176  FABIANI    CASE. 

aajourcVbai  la  th<^orie  da  tribunal  de  l'Empire,  selon  laquelle  l'Etat  n'est 
rc.s[ion8able  qu'en  vertu  d'une  disposition  lój^ale  expresse  (  llntatheldungeu 
des  Udchsgerichts  in  CivUsachen,  \o\.  W,  \\.'2Wi]  clr.  JViudsihtid,  op.  cit.. 
vol.  II,  \\  470,  note  4). 

Cette  dernitre  th«M)rie  est  adoptée  par  la  jnrispnidence  et  la  doetiinc 
suisses  (cfr.  Bliiiuer-Morel,  Handbnvh  den  xcliweizrriaclien  liundexstaaturechts, 
2 '"^  éd.,  Vol.  m.  p.  230  et  s.  ;  Hafncr,  Dus  acliinizeriarlie  Ohliiiatiiincurtvhi, 
2'"^' éd.,  ad  art.  64,  note  4,  ainsi  que  les  arrets  du  Tril)nnal  fédéral  cit  s 
dans  ces  deux  ouvrages),  tandis,  qu'en  Italie,  la  doctrine  eentraire  semble 
prévaloir  (cfr.  Ftizier  Uirmaii,  op.  cit.,  Vol.  III.  ail,  art  l;;8_'  et  13HH,  n"786). 
On  peut  ajouter  que  les  auteurs,  qui  ont  fait  du  droit  international  leur 
spécialité,  reconnaissent  qne  l'Ktat  est  re8|tonsable  des  di  uis  de  Justice 
commis  par  ses  autorités  Judiciaires,  à  tout  le  moins  lo  sque,  duement 
informé  ou  averti,  il  n'aura  rien  entrepris,  ni  pouf  eu  euip;cliei  les  effets, 
ni  pour  eu  suspendre  le  cours  (C.  ]k  lloltzendorlf,  Ilaiulbuth  des  nHherrechlH, 
Vol.  II.  ]).  74;  Fiore,  Droit  international  codijir,  n"*  3.30  et  340;  voir  aussi, 
Ca/ro,  op.  cit.,  Vol.  I.  n"  348  in  fine;  Pradier  Fodéré,  Traité  de  droit  inter- 
national public,  Vol.  I.  n»*  402  et  s.  ;  Bhintsclili,  op.  cit.,  n"  340). 

En  dioit  vénézuélien,  la  question  est  résolue  par  la  loi;  elle  l'est  égale- 
ment, entre  les  parties  eu  cause,  par  la  Convention  de  188.5. 

Le  décret  du  14  Février  1873,  sur  les  indemniti's  à  allouer  aux  ('trangers, 
n'a  pas  été  abrogé  par  l'acte  international  précité,  en  ce  qui  touche  les  con- 
ditions générales  de  la  responsabilité  de  l'Etat  pour  dea  dommages  occa- 
sionnés par  ses  fonctionnaires;  il  dispose,  en  son  art.  1"^:  ''Tous  les 
individus,  soit  nationaux  ou  étrangers,  (jui  intenteront  contre  la  Nation 
des  actions  en  douuuages  et  intérêts  ou  exproi»riatious,  provenant  d'  actes 
d'employés  de  la  Sation  ou  des  Etats  .  .  .  devront  s'en  tenir  aux  formalités 
établies  par  la  présente  loi"  —  formalit's  qui,  entre  la  France  et  le 
V-^n  zuéla,  sont  réglées  aujourd'hui,  en  ce  qui  concerne  notamment  les 
]>ri'judices  dérivant  de  dénis  de  Justice,  par  la  Convention  de  1885. 
L'art.  7  prévoit  que  "la  Nation  aura  le  droit  de  se  faire  rembourser  par 
l'employé  responsable,  ou  par  l'Etat  du(|uel  relèverait  le  dit  employé 
au  moment  de  la  faute,  la  sonnue  que  le  Trésor  national  débounserait 
par  suite  de  l'arrêt  condamnatoire."  11  ressort  de  ces  textes  que  le 
Venezuela  ri'connait  expressément,  en  principe,  sa  re8i)f>usabilité,  pour 
des  dommages  imputables,  soit  à  des  fonctionnaires  naticuiaux,  soit  à 
des  fonctionnaires  de  l'un  ou  l'autre  des  Etats  de  la  Fédération;  cette 
res])onsabilité  est  <lirecte,  elle  donne  ai-tion  contre  l'Etat  devant  la  Haute 
Cour  f<  dérale.  Quant  aux  fonctionnaires  (empleados),  la  loi  entend  ¡lar  là 
non  point  seulement  les  agents  du  pouvoir  exécutif  ou  les  préposés  dans  le 
sens  de  l'art.  1384  C.  civ.  f.,  mais  toutes  les  autorités  qui,  investies  d'une 
part  de  la  puissance  i)ubli(iue,  représentent  l'Etat  et  le  personnilient. 
L'art.  9  du  décret  de  1873  le  montre  clairement:  "  Dans  aucun  cas,  dit-il, 
on  ne  pourra  ])rétendre  que  la  Nation  ou  les  Etats  indemnisent  à  raison 
des  dommages  et  inti'rêts  ou  exprojjriatious  (|ui  n'auraient  pas  «  t<>  causés 
par  des  aiduritcs  l(';/itimes  affinsavt  en  rertn  de  leur  caractire  jinhlic."  Cette 
interprétation  est  conlirmée,  en  outre,  par  le  Code  ])énal  du  27  Avril  1873, 
(¡ni,  après  avoir  tiaité,  en  st^s  art.  2r>8  et  2.")!),  des  infractions  dont  les  /»/î/<» 
peuvent  se  rendre  coupables,  ajoute,  en  .son  article  260:  "Les  emplois 
publies  d'nne  autre  administration  qneleon<iue,  etc." 

En  matière  de  responsabilité  de  l'Etat,  il  n'y  a  donc  pas  lieu  d'«  tablir  de 


AWARD    OF    SWISS    ARBITRATOR.  177 

disfinctiim,  en  droit  vónó/.nóWen,  entro  los  fonctionniiircs  de  l'ordre  j ndici- 
aiie  et.  ceux  do  l'ordre  adniinÍHtr;itif,  piiisriiio  l;i  loi  les  ¡issiinilo  exprcHaíí- 
miMit  ]i's  iins  aux  aulres,  «'t.tjn'au  ni  ine  di'<rró,  hien  (|ue  dans  des  Hpliíres 
d'activitt" diversos,  ils  ajiissont  an  nam  do  l'Ktat.  l"t,  aim  ])oint  do  vue 
g('n  ral,  on  ne  voit  pas  poiircinoi  l'Etat  r  pondrait,  dans  uno.  mesure  di ftV-r- 
ente,  dos  pr.'jn<lices  cansos  jtar  ses  fonctionnaires,  selon  (|ue  les  aiitonrsdu 
dommage  seraient  oinployós  (iauN  l'administration  proiiremont  dite  on  dans 
la justiie  (cfr.  Slohhe,  op.  cit..  vol  111,  \  201,  ad  note  53;  H. -A,  Zarhariae, 
op.  cit.,  p.  637;  irindsclieid,  op.  (-it.,  vol.  I.  Ç\  59  in  fine;  Blumer- Morel,  op. 
cit..  vol.  III,  ]).  23)  ot  sniv.). 

Un  di  crot  v.  n  zuclien  de  m  ine  data  r|ne  le  pr(''Ccdont,  sur  les  droits  et 
les  devoirs  des  ((rangers,  t<nit  en  disjiosant,  on  son  art.  6,  (¡ne  "  los  cl  rang- 
ers n'ont,  lo  droit  de  demander  d(!s  indcinnitcs  au  (Jonverneinent"  «lue, 
"dans  los  memos  cas  que  los  vcnczindions'' — ceci  est  toutefois  modifié 
envers  les  Fran.nis  jiar  la  Convention  do  1885 — procl.iime  aussi,  en  ]>rin- 
cijie,  la  responsabiliti'  de  1  Etat  d  fondeur  pour  los  actes  de  ses  fVniction- 
nairos.  Il  li  rcconua.t  ni'ine  express,  nient,  à  raison  des  faits  illicites  des 
antorifi's  judiciaires,  en  résolvant,  dans  son  art.  5,  la  voie  diplomali(|iie 
pour  les  cas  de  "(l'»i  de  Jiislice  on  injustice  notoire;"  et  la  condition  de 
ré])nisenieut  préalable  de  toutes  les  voies  1  gales  de  recours  a  été  sup- 
prini'  e  i)ar  la  Convention  de  1885  à  l'i'gard  des  Français. 

Cette  responsabilité  directe  de  l'Etat,  «dictée  ]»ar  la  1  gislation  vén'zué- 
lienue,  n'e.st  pas  contraire  au  droit  des  gens;  elle  est,  de  jilus,  atïirmée 
dans  la  Convention  dn  2H  Novembre  1S85,  qui  permet  l'intervention  <liplo- 
niatiipie  et  consacre  implieitoment  !a  responsabilité  de  l'Etat  pour  tonte  la 
série  des  irr'^gularit  s  ¡iididaires  énum  r.-s  dans  l'art.  5  de  ce  <locument. 

L'I.tat,  d'autre  jiait.  ne  saurait  d.  cliner  sa  resjionsabilit.' par  la  motif 
que  les  faiiti  s  de  ses  agents  ou  fonctionnaires  ne  présenteraient  pas  un  cer- 
tain caract  re  de  gravité  (voir,  d'ailleurs,  sub.  V  ci  après).  L'art  1  du 
décret  du  14  Février  1873,  sur  los  indemnités  à  allouer  aux  étrangers,  est 
couvu  eu  tenus  si  généraux,  (¡ue  l'Etat  y  apparaît  respousable  exactement 
comme  ses  enijiloyés;  et  rien  n'est  plus  rationnel,  piiistiue  l'acte  donunage- 
able  est  alors  censé  provenir  de  l'Etat  lui-même  (cfr  H.-A.  Zavharine,  op. 
cit.,  p.  632;  Stohhc,  op.  cit.,  vol.  111,  i^S  201,  note  53).  Le  déni  de  justice, 
sous  quelque  forme  qn'il  se  produise,  constitue  un  cas  de  responsabilité  du 
fonctionnaire,  partant,  de  l'Etat.  Dis  lors,  Fabiani,  victime  de  dénéga- 
tions de  justice  duement  iirouvées,  pouvîiit  actionner  le  Gouvernement 
défendeur,  sans  observer  d'ailleurs  l'art.  5  du  décret  du  14  Février  1873 
concernant  les  devoirs  et  les  droits  dos  étrangers,  qui  pose  comme  condi- 
tion de  l'intervouticm  diiilomatiiiue,  ri'pnisemout  préalable  "dos  voies 
légales  auprisdos  autoritis  compétences"  (cfr.  Convention  do  1885,  art.  5); 
et  la  mesure  de  son  action  contre  l'Etat  est  la  même  (jue  contre  les  l'onc- 
tionnairos  fautifs. 

V.  Les  dénégations  de  justice  qu'a  éprouvées  Fabiani  sont  pour  lo  moins 
des  délits  civils  on  dos  quasi-delits.  lin  droit  moderne,  l'auteur  d'une 
faute  aqnilionne  est,  on  principe,  tenu  de  reparer /ohî  le  iiréjudiceiiui  peut 
raisonnablement  en  être  envisagé  comme  la  consé(|uence  directe  ou  indi- 
recte {damnum  emergens  et  lucrum  ecssanH),  certaines  législations,  comme 
celles  de  la  France  et  de  l'Allemagne,  ne  faisant  pas  dépendre  la  <|Uotité 
des  dommages  et  intérêts  de  la  gravité  de  la  faute,  d'antres,  ciunnie  le 
Code  civil  autrichien  et  le  Code  fédéral  dos  obligations,  n'accordant  la 
S.  Doc.  533,  5y-l 12 


178  FABIANI    CASE. 

r<^paration  int<^grralp  qn'en  oas  de  dol  on  de  tante  lourde.  An  demenrant,  les 
doniniaj;es  et  intc'ivtsne  doivent  pas  <'tre  la  source  d  nu  ]>rolit  ]ionr  celui  qui 
les  obtient  (ctr.  Fucier- Herman,  op.  cit.,  vol.  Ill,  ad.  art.  138J  et  13X3,  n"* 
1065et8uiv.  ;  Jubryet  Rait,  vol.  IV,  ^  440  et  446;  Dololombe,  vol.  XXXI,  u"685 
et  suiv.  ;  Laurent,  vol.  XX,  n"  529;  Zachariae,  Handbudi  des  franzoaischen 
Citilrechls,  T'""  edit.,  ^44S  et  445;  Windsvheid,  op.  cit..  G'"»  éd.,  vol.  II, 
H51,  n"  1.  '^•^■"'.  ^'"  5,  258,  notes  10  et  suiv.  ;  Stobbc,  op.  cit.,  vol.  Ill,  ^S  200. 
n°  &;  Holtzendortl"  TîecAisZfj-iVo»,  article  "  Scliadeuscrsatz;''  Holtzeudorlî", 
Handbuch  des  ViilkerrevUta,  vol.  II,  p.  74,  75;  Motire  du  projet  du  Code  civil 
allemand,  vol.  II,  p.  721  et  suiv.;  Schneider  et  Fick.  Das  srhuHzerischf 
Obligationenrecht,  3""  éd.,  notes  ad.  art.  50  et  51  C.  lYd.  des  obi.  :  Hafner, 
op.  cit,,  2""^  éd.,  notos  ad.  art.  50  et  51  C.  fed.  des  obi.  ;  Rossel,  Maniui  du 
droit  federal  des  oblif/atlons,  p.  88  et  suiv.) 

Ence(|ui  rcjiîude  spécialement  les  fonctionaircs  de  l'ordre  judiciaire, 
leur  responsabiliti-  embrasse,  en  droit  commun  allemand,  tout  le  dommage 
résultant  de  leur  dol  ou  d'uue  faute  lourde  de  leur  part  :  le  point  de  savoir 
si  cette  responsabilité  existe  éj^alement  dans  les  cas  de  faute  légère  est 
controversé,  mais  la  solution  affirmative  prévaut  (cfr.  Windsvheid,  op.  cit., 
vol.  II,  470;  Dernburg,  Pandekten,  3"«'ed.,  vol.  II,  ^S  135;  WetzeU.  op.  cit., 
il  36,  note  14).  La  responsabilité  du  pouvior  judiciare  est  aussi  admise 
en  France  (C.  proc.  civ.  fr.,  art.  505;  cfr.  Garsonnet,  op.  cit.,  vol.  I,  6  54; 
Laurent,  op.  cit.,  vol.  XX,  n"  447),  mais,  comme  il  a  été  expliqué  plus  haut, 
elle  n'est  pas  entraînée  par  une  laute  légère. 

Au  Venezuela,  ce  sont  les  art.  341,  255  à  259,  282,  288,  297  et  339  du  Code 
pénal  du  27  avril  1873  (|ui  règlent,  d'uue  manière  spéciale,  la  matière  de 
la  responsabilité  civile  d'une  autorité  Judiciaire.  Les  Juges  i)euveut  être 
actiouni'a  eu  dommages  et  iutérêts,  non  seulement  ensuite  de  leur  dol  ou 
de  leurs  fautes  lourdes,  mais  encore  pour  des  fautes  légères,  et  le  texte  de 
l'art.  341  semble  indiquer  (jue  la  réparation  doit  être  complète  dans  tous 
les  cas.  Il  n'est  pas  besoin,  au  reste,  d'ai)puyer  sur  cette  dernière  question, 
attendu  que  les  dénégations  de  Justice  dont  se  plaint  Fabiaui  procèdent,  à 
tout  le  moins,  de  fautes  lourdes  et  que,  dans  ces  circonstances,  le  préjudice 
à  réparer  s'entend,  et  du  damnum  emergens,  et  du  lucrum  cessans;  il  com- 
porte, en  outre,  le  tort  moral  comme  le  dommage  matériel  {Laurent,  vol. 
XX,  W"  393,  395  et  suiv.  ;  Aubry  et  Rau,  vol.  IV,  \N  445;  Hue,  op.  cit.,  VIII, 
n«413;  Demolombe,  vol.  XXXI,  n"  672;  Code  féd.  des  oblig.,  art.  55  et  les 
ouvrages  cités  de  Schneider  et  Fick,  Hafner  et  liossel;  C.  civ.  autr.  art.  1329, 
1330).  Relativement  au  dommage  indirect  cependant  et  à  la  nécessité 
d'établir  un  rai)port  de  cause  à  eti'et  entre  le  fait  illicite  et  le  dommage 
prétendu,  le  demandeur  prouvera  que,  soit  en  consultant  le  cours  ordinaire 
des  choses,  soit  en  s'attachaiit  aux  atlaires  de  la  partie  lésée  ou  aux  dispo- 
sitions prises  par  elle,  il  est  probable— non  pas  seu'ement  possible— que 
celle-ci  aurait  réalisé  tel  ou  tel  profit  si  le  fait  illicite  ne  s'était  pas  pro- 
duit, la  preuve  étant  d'ailleurs  soumise  à  des  conditions  moins  strictes  en 
cas  de  faute  lourde  ou  de  dol  et  le  Juge  conservant  une  entière  liberté' 
d'appréciation. 

Si  l'on  doit  décider  qne  le  goavernement  défendeur  est  responsable  des 
conséquences  des  dénégations  de  Justice  imputables  aux  autorités  Judici- 
ares  vénézuélienntis  envers  Fabiaui,  il  reste  i\  di'-termiuer  l'étendue  de  ces 
conséquences  en  ap]>lication  des  ))riucipes  exposés  ]diis  haut. 

Le  dommage  matériel  direct  subi  par  Fabiaui  comprend  les  valeurs  non 


AWARD    OV    SWISS    ARBITRATOR.  179 

recouvrîmes  et  les  biens  perdus  dont  il  serait  rentró  en  possession,  si  la  sen- 
tence arbitrale  du  15  dt'-ccnibre  LSSO  avait  ])u  être  exécutre  contro  les  Kon- 
caj'olo;  il  comiirend  ('galeuicut.  en  principe,  les  frais  de  la  i)roccdure(rex6- 
cution  (voir  sub.  VI.,  litt.  a,  chiliVeeS).  Fabiani  n'cût-il  pasóte  victime 
de  dénis  de  justice,  et  l'exc'cution  de  la  dite  sentence  n'eût-elle  pas  Hé 
eutravóe,  puis,  rendue  illusoire,  il  aurait  pu  obtenir  paicMuent  de  toutes 
les  condamnations  prououci'es  contre  ses  débiteura.  Effectivement,  B.  et 
A.  Koncayolo  ctaicnt  solvables  jusqu'à  concurrence  au  moins  des  restitu- 
tions diverses  ordonnc'es  par  le  juj;emont  dn  15  décembre  1880.  Ce  fait 
découle  déjà  de  ce  que  le  CJouvernment  Vt'nézuélien  n'a  jamais  allégué 
même  que  les  r '('lamations  de  Fabiani  fussent  irrécouvrables  contre  les 
Roncayolo,  et  (¡u'il  s'est  borné  à  contester  l'existence  des  dénégations  de 
justice,  ainsi  que  la  resjionsabilitc^  de  l'Ktat.  Kn  outre,  H.  Roncayido,  de 
la  vue  de  la  partie  d<'ienderisse,  a  ét('^  agrée  par  les  pouvoirs  publics  du 
Venezuela,  connue  concessionnaire  d'importantes  entreprises,  et  il  était 
fermier  de  la  douane  de  laCeïba.  André  Roncayolo  a  pu,  lui,  pendant  plus 
de  trois  ans,  tant  eu  en  sou  nom  persouuel  (|ue  connue  fcndé  de  procuration 
de  son  piie,  faire  les  frais  de  nombreuses  et  coûteuses  oppositions  à  l'exé- 
cutiou  de  la  sentence  arbitrale,  cboisir  ses  avocats  parmi  les  juriconsultes 
notoirement  les  plus  renommés  du  pays,  sans  compter  qu'il  s'était  enrichi 
d'une  somme  de  plus  d'un  demi-million  de  francs  an  détriment  de  Fabiani. 
Et  c'est  vraisemblablement  pour  mettre  à  l'abri  des  poursuites  de  leur 
créancier,  les  droits  et  intérêts  cousidi  râbles  qu'ils  avaient  au  Venezuela, 
que  les  adversaires  do  Fabiani  ont  empêché  avec  tant  d'a(  harnement  l'exé- 
cution de  la  sentence  du  1.5  décembre  1880.  La  solvabiliti'  de  B.  et  A.  R(m- 
cayolo,  partant,  la  recouvrabilit.'  des  valeurs  au  remboursement  destiuelles 
ils  avaient  été  condamnés,  ne  sauraient  être  sérieusement  mises  en  doute, 
d'autant  plus  que,  comme  on  vient  de  le  dire,  le  ^'énózuéla  ne  les  a  point 
déniées. 

En  dehors  du  dommage  matériel  direct,  Fabiani  a  éprouvé  un  tort  ma- 
tériel et  surtout  moral  très  grave,  en  ce  que  les  diMiégations  de  justice  ont 
porté  à  tous  égards  une  profonde  atteinteà  sa  situation  personnelle  et  ont 
même  été  la  cause  de  la  faillite  prononcée  contre  lui  au  Venezuela  (voir 
sub.  VI,  litt.  a,  chiffre  6  ci-après). 

Le  dommage  indirect  enfin  a  sa  source  dans  le  fait  que  les  sommes  pay- 
ables par  les  Koncayolo  en  vertu  de  la  sentence  arbitrale,  ont  été  soustrai- 
tes au  créancier  pendant  un  grand  nombre  d'années  et  qu'il  n'a  pu  ni  les 
employer  dans  sou  commerce,  ni  le-s  faire  fructitier  d'une  manière  quelcon- 
que; il  ne  s'agit  pas  ici  de  bénéfices  ou  de  ]tertes  purement  hy])0thi'tique.s, 
dans  lesquels  certains  publicistes  {Calvo,  op.  cit.,  IV,  477)  se  reiuseut  à 
voir  "  la  matière  d'une  action  pr'cuniaire  de  gouvernement  à  gouverne- 
ment," mais  d'un  manque  à  gagner  dont  les  éléments  re]>osent  sur  des  faits 
concluants,  et  il  serait  souverainement  contraire  à  Tt-quité  et  à  la  justice 
de  n'en  i)oint  tenir  compte  dans  le  présent  procès  (voir  sub.  VI,  litt.  ft). 
Et  nuiintenaut,  deux  ('ventualités  pouvaient  se  présenter;  ou  bien,  les 
débiteurs  de  Fabiani  s'ac(|uittaient  envers  lui,  ou  bien,  soit  à  l'amiable, 
soit  p.ir  voie  d'exécution,  il  se  substituait  à  tous  les  droits  de  concessions, 
de  douanes  et  autres  (|u'ils  possédaient  au  Venezuela.  Entre  ces  deux 
hypotheses,  plausibles  l'une  et  l'autre,  il  faut  néeessairement  choisir  celle 
qui  est  la  moins  défavorable  à  l'Etat  défendeur  et  qui  est  aussi  la  plus 


180  FABIANI    CASK. 

admissible  d'après  le  cours  ordinaire  des  choses,  c'est-h-dire  riijiiotbise  da 
paiement.  Ce  i  d'autant  jdns  (luil  n'a  f'tó  ni  oHert,  ni  acîministr '•  ani-ane 
preuve  tendant  à  établir  que  cette  hypotbi-sede  la  solution  la  plus  normale 
dudifîV'reud  Fabiani-Iioncayolo  ne  se  serait  jtoint  ri^alist'e;  il  n'snitem  me 
de  l'exposó  du  gouvernement  demandeur  que  les  débiteurs  do  F.ibiani 
avaient  un  intérêt  majeur,  s'ils  étaient  contraints  d'exécuter  la  sentence 
arbitrale,  à  se  libérer  jiurement  et  simplement  entre  ses  m:iins,  ]ilnt>t  {|n':\ 
se  laisser  enlever  des  droits  d  une  valmir  bien  supérieure  à  celle  di-s  con- 
damnations ]trononct'es — sans  parler  luému  des  olistailes  auxquels  se  s.rait 
beurté  sans  doute  le  transfert  tie  tout  ou  partie  de  ces  droits  à  Fabiaui.  et 
sans  appr 'cicr  1  eflicacité  des  sûretés  réelles  obtenues  au  cours  de  la  pro- 
cédure d'exécution. 

La  qnestiiin  du  modi  de  paiement  de  lindcninité  a  été  discutée  dans  la 
demande,  mais  elle  n'est  point  litigieuse;  le  compromis  l'a  réglée  d'une 
manière  obligatoire  pur  les  |)arties  et  p  )ur  l'Arliitri'. 

VI.  La  li(iuidation,  d'apr.s  les  principes  ci-dessua,  de  l'état  de  dom- 
mages et  intérêts  présenté  par  le  Gouvernement  demandeur  fournit  les 
résultats  suivants: 

a.  Dommage  direct  et  tort  moral. 
(1)  La  sentence  arbitrale  fixait  i\  la  somme  de  538,3.59  fr.  .07, 

valeur  au   31  janvier   1878,  le   débit   de   André    Koneayolo 

envers  Fabiaui.     Ce  poste  est  réduit,  en  capital,  d'après  la       Fmnca. 

demande  à 429,  Gii8. 10 

Il  y  a  lieu  de  tenir  comte  d'un  versement  de 5.  4!iO.  5.5 

Reste 424, 177. 55 

(2)  Outer  cette  somme,  due  par  A.  Roncayolo,  la  sentence  arbitrale  con- 
fère à  Fabiani  le  droit  de  réclamer  "  tons  les  produits,  sans  aucune  exeep- 
tion  et  sans  aucune  réserve,  donnés  par  l'entre])rise  du  remorquage  <lepiiis 
le  30  novembre  1877,  y  compris  les  bénéfices  du  pilotage,"  dès  la  même 
époque,  en  tant  que  ces  ])ro(it8  axiralent  et-  encaiss.'s  par  15.  ou  A.  Ronca- 
yolo; les  autres  condamnations  d(>rivant  de  la  sentence  du  15  décembre 
1880,  ont  été  exécutées,  au  moins  dans  une  certaine  mesure,  ])uis(|ue  Fabi- 
aui a  repris,  dès  le  mois  de  Juillet  1882,  soit  avant  le  debut  des  denégaticuis 
de  Justice,  1(î  service  du  pilotage  et  ilu  remorquage,  et  que  des  preuves 
positives  concernant  les  efiets  de  l'inexécution  de  ces  autres  condamna- 
tions font  défaut  dans  la  ])rocédure. 

Du  cbef  du  dispositif  ])récité  do  la  sentence  arl)itra]e,  la  demande  porte 
au  compte  de  "  liijuidation  des  sentences,"  en  cai)ital  : 

Francs. 
Recettes  du  pilotage  du  1"  décembre  1877  au  30  décembre  1878. .  lli,  000.  00 
Recettes  du  jtilotaue  du  1''  décemlire  1878  au  30  décembre  1879. .  lu,  000.  00 
Recettes  du  i)il()tage  du  1"  déeembre  1879  au  30  <lécembre  1880. .  10,  000. 00 
Recettes  du  jtilotagedu  V  décembre  1880  au  30  décembre  1881..  12,500.00 
Recettes  du  pilotage  <lu  1"^  décembre  1881  au  15  juillet  1882 7,  812.  45 

Total 68,  312. 45 

Le  Gouvernement  défendeur  n'a  ni  contesté  le  bien  fondé  <le  cette  dette, 
provenant  des  encaissements  faits  sans  droit  y)ar  la  jiartie  adverse  de  Fabi- 
ani, ni  critiqué  ces  cbillres  (jui  ne  paraisse  ut  pas  exagérés. 


AWARD    OF    aWIrtS    ARHITKATOR.  181 

II  en  eat  de  même  pour  les  restitutions  qui  se  rapportent  au  remorquage; 
elles  sont  ainsi  formuli-es  dans  la  cleiuuucle,  en  capital  : 

Francs. 

Produit  net  de  l'année  1880 100,  000. 00 

Produit  net  de  l'annexe  1S81 100,000.00 

Produit  du  1":^  janvier  au  15  juillet  1882 54. 105.  51 

Total 254,166.51 

Le  produit  net  i^valué  annuellement  à  100,000  francs  n'est  (lu'af)proxi- 
niatifi';  mais  ce  chiffre,  qui  n'a  pas  été  contest(''  dan.s  la  <l('feuse,  peut  être 
admis  au  vu  des  documents  produits.  <Jaaut  aux  "abus  <le  coniiance"  et 
"di'tournoments"  des  Koncayolo,  (jui  ne  visent  ])as  directement  le  pilot- 
aiie  ou  le  remorquage,  ils  ne  sont  pas  compris  dans  la  sentence  arbitrale, 
ni,  par  consé(]uent,  dans  le  compromis  de  1891. 

(3)  Il  y  a  lieu  d'ajouter  au  compte  de  "liquidation  des  sentences"  les 
frais  importants  occasionnés  par  la  procédure  d'exécution  depuis  le  15 
décembre  18S0,  frais  (lue  le  Gouvernement  demandeur  fait  fifjurer  sous 
diverses  rubriques  de  son  état  de  dommajíes  et  intérêts;  les  autres  frais 
judiciaires  réclamés  ne  peuvent  rentrer  dans  l'indemnité  .à  fixer  par  l'Ar- 
bitre Ce  poste  embrasse  les  frais  d'enregistrement  de  la  sentence  arbitrale, 
les  frais  de  justice  et  de  partie  tant  de  la  procédure  devant  les  tribunaux 
français  que  devant  les  tribunaux  vénézuéliens,  soit  (¡ue  la  party  adverse 
de  Fabiani  efit  l'obliiiatiou  de  les  rembourser,  soit  qu'ils  aient  été  causés 
inutilement  à  ce  dernier. 

Une  somme,  intérêts  ('ompris,  de ...fr..  200,000 

ne  semble  pas  excessive,  si  l'on  tient  compte,  entre  autres,  des  nombreux 
et  coûteux  déplacements  que  la  sauvegarde  de  ses  droits  a  imposés  à 
Fabiani,  et  même  si  l'on  porte  en  déduction  les  frais  qui  peuvent  être 
envisagés  comme  ayant  été  faits  sans  motifs  légitimes. 

foutes  les  antres  ri^clamations  de  l'état  consacré  à  "la  liquidation  des 
sentences"  sont  étrangères  au  litige  actuel;  c'est  le  cas  des  "abus  de  con- 
iiance" et  "  détournements"  dont  il  a  été  parlé  plus  haut,  ainsi  que  des 
"annuités  dotales"  en  vertu  du  contrat  de  mariage  du  20  avril  1867,  de  la 
perte  éprouvée  sur  la  vente  des  marchandises  d'apr.s  la  transaction  du  31 
janvier  1878,  etc.  Ces  sommes  n'étant  pas  comprises  dans  la  sentence 
arbitrale  n'ont  pu  provoquer,  de  la  part  des  tribunaux  vénézuéliens,  des 
dénégations  de  justice  dont  le  Gouvernement  défendeur  serait  responsable 
aux  termes  <lu  compromis  de  1891. 

La  question  des  intérêts  est  réservée  (voir  sub.  litt.  b  ci-après). 

(4)  Parmi  les  r(  clamatiims  ligurant  dans  l'état  B.  dommages  et  intérêts, 
les  seules  qui  puissent  être  prises  eu  considération,  dans  l'espèce,  sont 
celles  meutionn(  es  sous  chiffres  11,  12  et  19  de  l'exposé  des  faits  qui  pré- 
cède; or  elles  sont  entrées  eu  ligne  de  compte,  déjà  lors  de  la  fixation  (voir 
sub.  3)  des  frais  d'ex,  cution  de  la  sentence  arbitrale.  Les  autres  iudem- 
iiités  n'ont  ]>as  leur  source  dans  lailite  sentence,  ni,  par  conséquent,  dans 
son  défaut  d  execution  ensuite  de  diuégaiions  de  justice  imi)utables  aux 
tribunaux  du  Vém'zuéla;  il  est  superUu,  dans  ces  conditions,  de  s'occuper 
des  déductions  consenties  dans  l'état  B.,  attendu  qu'elles  ont  trait  à  des 
jiostes  éliminés  par  l'Arbitre. 

(5)  L'état  C.  se  réfère  au  service  du  remorquage,  et  les  dommages  et 
intérêts  qu'il  comporte  out  leur  origine  dans  le  retrait  de  ce  service  en 


182  FABIANI    CASE. 

1884  Cette  question  a  6t6  tranchi5e  à  propos  de  colle  des  "  faits  du 
prince;"  sans  discuter  niôuie  le  point  de  savoir  si  le  (Gouvernement  défen- 
deur n'était  pas  en  droit  de  dénoncer  le  contrat  du  7  décembre  1874,  il  est 
évident  que  les  gains  dont  Fabiani  prétend  avoir  été  frustré  par  cet  acte, 
ne  lui  ont  pas  été  enlevés  à  raison  de  dénégations  de  justice  qui,  seules, 
peuvent  engager  la  responsabilité  du  Vénézui'la  dans  l'instance  actuelle. 
Il  s'agit  ici  ])récisément  d'un  de  ces  "  faits  du  prince,"  sur  la  légitimité  et 
les  efiets  du()ue]  l'Arbitre  n'a  pas  à  se  j>r(iu()ucer;  il  ne  lui  itait  ¡lermis  de 
l'apprécier  (jue  comme  un  indice  des  <lisi)osition8  de  l'autorité  vénézuél- 
ienne envers  Fabiani  (voir  sub.  III.  ci-devant). 

(6)  Un  tort  considérable,  matériel  et  surtout  moral  (étatE.),  a  été  causé 
à  Fabiani  par  sa  déclaration  de  failite  au  Venezuela,  la  fermeture  de  ses 
établissements  commerciaux  à  Maracaibo,  les  embarras  financiers  dans 
lesquels  il  a  été  fatalement  ])longé  et  l'abandon  forcé  de  ses  <'ntrei)rÍ8es. 
Ce  dommage  peut  être  envisagé  connue  la  consiMiuencts  imuudiate  des 
dénégations  de  justice,  puisiiuo  aussi  bien  Fabiani  a  été  mis  en  faillite  il 
Maracaibo  pour  défaut  de  paiement  de  sommes  inférieures  de  Ijeaucoup  à 
celles  que  l'exécution  de  la  sentence  arbitrale  lui  aurait  fait  recouvrer. 
Le  Gouvernement  défendeur  ne  conteste  i)as  que  Fabiani  possédait  des 
maisons  prospires  au  Venezuela  et  à  Marseille,  du  moins  avant  les  démêlés 
judiciaires  dont  est  né  le  présent  litige:  et  les  motifs  de  la  sentence  arbi- 
trale, ainsi  que  d'autres  elements  de  la  cause,  montrent  pue  le  ressortissant 
franvais,  dont  lEtat  demandcîur  a  pris  les  intérêts  en  mains,  était  un 
négociant  sérieux  et  honnête,  auquel  le  recouvrement  de  ce  <|ue  les  Kon- 
cayolo  lui  devaient  aurait  permis  d'escompter  largement  l'avenir.  Sa 
faillite,  déterminée  par  les  dénégations  de  justice  souvent  rappelés,  l'a 
profondément  atteint,  tant  dans  sa  situation  (conomiiiue  que  dans  sa 
personnalité  tout  entière,  si  bien  «jue  l'allocation  d'une  indemnité  propor- 
tionnée au  dommage  subi  s'impose  de  ce  chef.  Au  reste,  Fabiani,  j^àce 
à  ses  connaissances,  à  son  activité,  à  ses  moyens  d'action,  ne  pouvait  man- 
quer, dans  des  conditions  normales,  d'accroître  encore  la  C(msidération  et 
le  crédit  dont  il  jouissait,  de  donner  à  ses  entreprises  un  pins  grand  essor, 
et,  très  probablement,  de  faire,  eu  sus  du  gain  ])erdu  et  dont  il  sera  parlé 
ci-ai>rcs,  d'autres  bénélîces  pur  l'exploitation  d'autres  sources  de  revenus; 
par  la  faute  des  autorités  judiciales  du  Venezuela,  il  a  perdu  tout  ensemble 
ses  biens  et  son  honneur,  et  il  a  traversé  de  tri  s  pénibles  épreuves.  Ce 
sont  là  des  circonstances  excei»tiounelles,  dont  il  serait  injuste  de  mécon- 
naître la  gravité  et  d  ('carter  les  conséquem  esdoiuuiagealdes,  en  iiivoiiuant 
le  caractère  international  de  la  contestation  actuelle. 

Des  renseiguemeuts  pri'cis  fout  nécessainiuent  défaut,  sur  certains 
points,  pour  établir  avec  une  exactitude  absolue  le  montant  de  la  répara- 
tion (jui  est  b'giteuiement  due  à  Fabiani,  dans  les  limites  de  l'état  F  de  la 
demande.  L'Arbitre,  ai)préeiant  librement  les  faits  de  la  cause,  évalue  à 
tr.  1,800,000  le  chil'lre  des  dommages  et  intérêts  représentant  le  préjudice 
éprouvé,  indépendameut  de  celui  reconnu  sous  litt.  b. 

b.  Dommane  indirect. 

(1)  Les  dommages  et  intérêts  réclamés  dans  l'état  F)  correspondent  auK 
sacrifices  j'aits  pour  le  maintien  de  l'industrie  de  I  abi;ini  et  au  gain  dont 
il  a  été  frustré.  La  uon-exi'cution  de  la  sentence  ail)itrale,  nou-execntion 
provoi^uée  par  des  denisde  justice,  a  causé  il  Fabiani  un  i>réjiidiee  indirect 
íixó  dans  la  demande  à  la  some  tie  l,l.'0(),(IOO  francs;  mais  il  importe  de  ne 


AWARD    OP^    SWISS    ARBITRATOR.  183 

pas  confondre  ce  dommage  avec  celui  dont  il  vient  d'etre  apl<5r,  sous  litt.  a, 
chiffre  6. 

Aussi  bien,  il  y  a  lieu  d'admettre  ici,  à  titre  de  corapeusation,  uniquement 
l'éiinivalent  du  domtnai^e  qui  peut  être  cousi(l(>r<^  coiuiue  une  suite  de 
rim])()8sil)ilit('  dans  laqiiellci  s'est  trouvé  Fabiaui,  à  raison  <le  l'iuexccution 
du  jugement  du  lôdéceiiihre  1880,  de  faire  fructilier  les  capitaux  iinportants 
({ui  lui  étaient  dus  et  ([u'il  aurait  recouvrt's.  Le  uioyen  le  ¡¡lus  sûr 
d'arriver  :\  un  évahiatiou  certaiue,  eût  été  de  consulter  les  livres  de  la 
maison  Fabiani  et  de  \erilier  .)us((u'à  quel  point  ses  bénéliccs  avieut 
successivement  diminué  i)ar  l'ellet  du  refus  di'guisé,  mais  persistant,  des 
autorités  vénézuéliennes,  de  procéder  ou  de  laisser  procéder  à  l'exéi-ution 
de  la  sentence  arbitrale.  Ces  livres  n'ont  pas  ét('^  produits,  et,  quoique  le 
défaut  de  production  de  ces  documents  i)araisse  excusable,  les  indications 
foui'nies  dans  létat  D  ne  constituent  pas  des  justifications  suffisantes 
de  toute  l'indemnité  réclamée.  L'existeuce  d'un  doumiage  indirect  n'en 
est  pas  moins  indubitable.  Ce  préjudice  consiste  esseutielîomcut,  non  pas 
daus  les  sacrifices,  prouvés  d'une  manière  incomplète,  que  Fabiani  aurait 
faits  pour  le  maintien  de  son  industrie  et  dans  des  profits  jilus  ou  moins 
probables,  mais  daus  la  circonstance  que  les  sommes  dues  en  vertu  de  la 
sentence  arbitrale  sont  demeurées  inproductives  pendant  nombre  d'années, 
de  par  les  dénégations  de  justice  commises  à  sou  encontre  au  Venezuela. 

Daus  la  demande,  on  a  ajouté  constamment  au  capital  des  réclamations 
formulées,  les  intérêts  couiposés  qui  rentrent  plutôt  dans  les  indemnités  à 
allouer  pour  dommage  indirect.  Il  convient,  à  ce  propos,  de  faire  observer 
que  les  arguments  invoqués  par  le  Gouvernement  défendeur  (M/ewse,  p. 
97  et  suiv.)  contre  la  prétention  de  la  partie  adverse  d"(ixiger  des  intérêts 
ne  sont  nullement  fondés;  la  renonciation  (jne  l'on  oppose  au  Gouverne- 
ment de  la  République  française  ne  concerne  pas  la  présente  contestation 
et  no  saurait  être  entendue  au-delà  de  ses  termes;  de  plus,  les  considéra- 
tious  juridiques  développées  à  l'appui  de  la  tbèse  de  l'Etat  vénézuélien  ne 
sont  pas  concluantes,  pour  les  motifs  précédemment  exposés  et  qui  mon- 
trent que  la  mesure  de  la  responsabilité  de  l'Etat  est  adéquate  à  celle  de 
la  responsabilité  des  autorités  fautives  elles-mêmes. 

S'il  en  est  ainsi,  on  doii  reconnaître  que  Fabiani  aurait  pu  faire  fructi- 
fier, dans  ses  entreprises,  les  intérêts  simples  du  montant  des  coudamna- 
tions  de  la  sentence  arbitrale,  dixns  l'éventualité  où  il  n'aurait  pas  été  vic- 
time de  d  négations  de  justice.  La  capitalisation  d'intérêts  est  autori;}ée 
en  matière  de  comptes-courants  et  d'opérations  analogues,  parce  que  le 
législateur  présume  (¡ne,  dans  le  commi'rce,  l'argent  ne  reste  pas  impro- 
ductif (cfr.  art.  335,  C.  féd.  des  oblig.  et  Laurent,  op.  cit..  Vol.  XVI,  n"348). 
Mais  Fabiaui  n'a  droit  à  des  intérêts  composés  que  pour  les  réclamations 
admises  sous  litt.  a,  chiffres  1  et  2,  qui  s'élèvent  à  la  somme  totale  de 
746,6.")(;  fr.  51,  car  il  n'en  saurait  être  question,  ni  ¡i  l'égard  des  200,000 
francs  alloués  pour  frais  judiciaires,  ni  à  l'égard  de  l'indemnité  ferme  de 
1,800,000  francs  accordée  sous  litt.  a,  chiffre  6.  Les  intérêts  composés  de 
la  somme  de  716,656  fr.  55  ne  représentent  toutefois  pas,  dans  l'opiuion  de 
l'Arbitre,  le  gain  intégral  dont  Fabiaui  a  été  irustré  par  le  non-recouvre- 
ment des  sommes  comprises  dans  la  sentence  arljitrale.  Si  Fabiani  avait  pu 
tirer  parti  de  c(;s  sommes  et  les  employer  <lans  son  négoce,  il  est  vraisem- 
blable qu'il  aurait  fait  des  bénéfices  supérieurs  aux  intérêts  composés  de 


184  FABIANI    CASE. 

cecapit.ll  pendant  le  laps  de  temps  durant  lequel  il  serait  antorisí^  ales 
porter  eu  compte.  Ainsi  (ju'il  resulte  de  circonstances  déjà  relatces,  il  avait 
des  maisons  de  commerce  prosperes,  son  crédit  était  bien  établi,  ses  res- 
Bonrces  étaient  considérables,  toutes  ses  entreprises  paraissaient  assurées 
d'un  rapport  exceptionnellemeut  élevé;  les  dénégations  de  justice  dont  il 
a  été  la  victime  lui  ont  causé  les  ])erte8  tri-s  graves  ([U i  viennent  d'etre 
rappelées.  Ici,  de  nouveau,  l'Arbitre  doit  apprécier  librement,  suivant  la 
conviction  ((u'il  a  puse  former,  et  il  juge  é(iuitable<révaleur  à  Fr.  1,500.000 
le  doium  ij;e  indirect  sul)i  par  Faliiani,  en  tenant  compte  de  la  réalisation 
de  rhyp()thc([ue  de  120,000  francs. 

(2)  .Sur  les  préjudices  commerciaux  de  Fabiana  viendrait  se  grefter,  sui- 
vant la  demande,  le  dommage  éprouvé  dans  l'atfairo  du  chemin  de  fer  de 
la  CeVba.  Connue  lii  montrent  les  considérations  diveloppé-t-s  sons  chiffre 
V  in  fine,  il  n'est  point  établi  (¡ne  13.  et  A.  Koncayolo  ne  se  seraient  pas 
libérés,  atin  précisément  d'arrêter  toute  procédure  dirigée  contre  des  droits 
et  actions  d'une  grande  valeur.  It  n'est  pas  prouvé  davantage  (pie  le  trans- 
fert de  ces  droits  et  acti<ms,  à  défaut  même  de  paiement,  se  serait  néces- 
sairment,  et  pour  leur  totalité,  effectué  au  profit  de  Fabiani.  L'hy^otbése 
sur  laquelle  repose  cette  reclamation  de  24,000,000  de  francs  ayant  été 
écarti  6,  il  convient  de  faire  complètement  abstraction  de  l'indemnité  qui 
s'y  rapporte. 

c.  En  ce  qui  concerne  les  frais  de  la  présente  instance,  l'Arbitre,  constatant 
que  les  conclusions  de  la  demande  sont  adjug(>es  en  principe,  mais  que 
l'exagération  des  réclamations  firinulées  a  entramé  des  di  i)ens  inutiles, 
met  les  frais  du  Gouvernement  deinanileiir,  li()uidé8  à  la  somme  de  Fr. 
100,000 — à  la  charge  du  (Jouveruement  défendeur  et  compense  entre  les 
parties  les  dépens  de  l'arbitrage. 

VII.  De  ce  (jui  précède,  il  résulte  qiae  le  chiffre  intégral  de  l'indemnité 

allouée  s'établit  comme  suit: 

Francs. 

1.  Débit  A.  Roncayolo 424,  177.  5.5 

2.  Recettes  du  pilota,ge 68,  312.  45 

3.  Recettes  du  remorquage 254,  IGti.  51 

4.  Frais  d'exécution 200.  000.  00 

5.  Dommage  causé  par  la  faillite 1,  800,  (0  ».  00 

6.  Domniiige  indirect î ,  500,  ( )00.  00 

7.  Frais  du  demandeur 100,  OdO.  00 

En  tout 4,  346,  656. 51 

Par  ces  motifs. 

Prononce  : 

Le  Gonvernement  des  Etnts-lTnis  du  Venezuela  paiera  à  Fabiani,  à  titre 
d'indemnité,  <lans  les  ternies  du  com)tnimis  «lu  21  l'<  vrier  1X91,  tons  frais 
comi)r¡8,  la  somme  totale  de  (¡nntre  millionn  troix  cent  (¡■laraiitc-sis  mille 
cin'iiuijilc-six  frailes  cin<¡uanle  cl  un  cenliuies  (Vx.  4,  316.  656. 51),  avec  intérêts 
à  cinc]  i)our  <ent  l'.-in  d  s  la  date  do  la  pr  sente  sentence. 
Les  dépens  de  r,irl)itr:in'e  smit  compensés  entre  les  ])arties. 
Ainsi  fait  a  iierne,  le  trente  Décembie  18;)6. 

A.  Laciik.n.m., 
President  de  la  Conjïdaalion  suiuse. 


CLAIM  OF  FIERI  DOMINIQUE  &  CO.— No.  5." 


HEAD   NOTES. 


Prevention  by  the  chief  of  tlie  custom-house  at  Can'ipano  of  the  heneficial  use  of  the  tram- 
way enterprise  l)y  tlie  chiimant  was  without  right  and  tlie  injuries  resulting  are  properly 
cliargcable  to  the  respondent  Govennnent. 

Suspension  of  the  tramway  traffic  by  order  of  the  municipal  counril  of  Carúpano  is  equally 
without  right,  and  the  injuries  resulting  are  properl}»^  chargeable  to  the  respondent  Gov- 
ernment through  this  municipal  division  thereof. 

Suspension  of  the  tramway  traffic  by  order  of  the  municipal  council  of  Carúpano  that  the 
private  aqueduct  company  might  use  its  streets  to  lay  the  pipe  lines  of  the  company 
whereb\-  serious  injury  resulted  to  the  claimant  must  be  met  with  a  proper  recompense 
by  the  city  and  is  here  properly  chargeable  to  the  claimant  Government  tlirougli  and 
because  of  said  municipality. 

The  defects  and  faults  of  the  street  following  and  resulting  from  the  laying  of  these  pipe  lines 
by  the  aqueduct  company,  after  their  condition  was  known  to  the  city  and  tliey  were 
accepted  in  that  condition,  and  which  defects  and  faults  resulted  in  serious  injury  to  the 
claimant,  the  damages  resulting  are  properly  chargeable  to  the  respondent  Govern- 
ment through  this  municipality,  having  special  reference  to  the  fact  that  the  claimant 
had  resumed  use  of  the  streets  on  the  formal  statement  of  the  municipalitj'  that  they 
were  in  proper  condition  therefor. 

a  EXTRACT   FROM   THE   MINUTES   OF   THE   SITTING    OF   MAY    12,  1903. 

The  arbitrators  proceeded  then  to  the  examination  of  the  claim  presented  by  Messrs. 
Fieri  and  Nasica,  of  which  the  different  parties  are  the  object  of  the  following  decisions: 

The  claim  of  Mr.  Nasica,  amounting  to  1,. 500,000  bolivars,  is  rejected  by  the  commission; 
the  claim  of  the  Messrs.  Fieri  &  Co.,  amounting  on  the  one  hand  to  3,730,000  bolivars  and 
on  the  other  for  acts  posterior  to  May  23,  lSfl9,  to  280,400  bolivars,  is  accepted  in  its  en- 
semble for  600,000  l)oHvars  Iw  M.  de  Feretti. 

The  French  arbitrator  considers  that  the  continual  hindrances  lirought  l)v  tlie  municipal 
authorities  of  Carúpano  to  the  exploitation  of  the  line  of  tramways  have  rendered  the  latter 
.so  difficult  that  the  rescission  of  the  contract  ought  to  be  pronounced.  In  exchange  for  the 
indemnity  which  he  demands  for  the  concessionary  the  city  of  Carúpano  will  remain  in 
po.ssession  of  the  line,  of  the  depot,  and  of  the  cars  which  constitute  the  actual  material 
existing. 

M.  de  Feretti  adds  that  he  has  Ijcen  able  during  his  trip  to  Carúpano  to  prove  that  the  last 
war  had  completely  stopped  tlie  exploitation;  the  line,  of  which  the  rails  liave  been  torn  up 
in  .several  places,  is  cut  in  two  by  four  barricades;  tiie  depot,  which  has  served  as  a  military 
liospital,  is  partly  demolished  and  the  cars  have  almost  all  l)een  put  out  of  service. 

Doctor  Faúl  is  in  favor  of  according  oidy  20,000  bolivars  to  Mr.  Fieri  for  the  destruction 
of  tlie  printin<r  office  and  1.'<0,0(X)  bolivars  for  the  damage  caused  to  the  company  of  tram- 
ways by  the  last  war  and  for  the  abandonment  which  M.  Fieri  had  to  make  to  the  munici- 
pality of  Carúpano  of  the  concession  of  the  tramway,  of  the  depot,  and  of  the  material 
which  makes  up  the  exploitation  of  the  said  line.  He  refuses  to  acknowledge  for  the  inter- 
ested party  the  right  to  an  indemnity  from  the  fact  of  his  dispute  with  the  municipal 
authorities. 

Doctor  Paúl  presents  the  reading  of  the  memoir  containing  the  arguments  upon  which  he 
bases  his  opinion.  After  the  discu.ssion,  the  arbitrators  each  maintaining  his  opinion,  it  is 
agreed  that  this  claim  will  be  submitted  to  the  umpire. 

185 


186  DOMINIQUE    &    CO.   CASE. 

Tlie  arrest  and  imprisonment  of  the  claimant  on  the  oral  order  of  the  civil  chief  without  war- 
rant, his  detention  for  twenty-four  hours  in  prison,  and  his  subsetjuent  disrhai^e  on  ¡)av- 
ment  of  the  jail  fee  without  intervention  of  rourt  or  trilninal  of  any  Hiaraeter  is  whollv 
unjustifmhle  and  is  a  proper  subject  of  indemnity. 

The  losses  accruin<i  to  the  claimant  through  the  sale  of  his  houses  not  l)eing  the  direct  and 
approxi^iiate  result  of  any  cause  for  which  the  respondent  Governmont  is  responsilile  no 
damages  can  accrue. 

Because  the  claimant  Government  and  the  respondent  Grovemment  agreed  in  the  protocol 
constituting  this  commis.sion  that  payment  of  awards  made  should  be  in  the  3  per  cent 
diplomatic  debt  of  Venezuela  and  because  that  such  diplomatic  debt  has  a  value  at 
present  very  much  below  par,  it  is  urged  by  tlie  claimant  Government  that  the  umpire 
add  a  sufiicient  amount  to  his  award  to  make  it  as  valuable  to  the  claimant  as  though 
the  award  was  payable  in  gold.  This  interference  with  the  solenm  compact  made 
between  the  two  nations  is  justified  on  the  part  of  the  claimant  Government  U|)on  the 
ground  of  the  inequality  which  exists  between  it  and  the  other  governments  which  have 
recently  had  arbitral  relations  with  the  respondent  Government.  The  arrangement  for 
payment  in  the  one  case  permitted  a  long  c'elav  in  payment,  without  interest.  This 
arrangement  rer)uires  inmiediate  pajTncnt  through  its  diplomatic  debt  with  interest  at 
a  low  rate.  The  inequity,  therefore,  is  not  verj'  pronounced,  and  if  it  were  the  umpire 
regards  him.self  incompetent  to  make  tlie  award  suggested. 


OPINION  OF  THE  VENEZUELAN  COMMISSIONER. 

These  claims  amount  to  5.510,400  francs,  made  up  as  follows: 

Francs. 

Claim  of  Fieri  Dominique 3,  730,  (M) 

Claim  of  A.  L.  Nasica 1,  rm,  (KM) 

Claim  of  Fieri  Dominique  &  Co 280.  ItX) 

Total ñ,  510,  400 

In  the  records  of  these  claims  there  are  connected  two  cL.ims  for 
indemnity  against  the  Government  of  Veneziiehi,  presented  on  the  Gth 
of  July,  1895,  to  the  governor  of  Martinique  by  L.  Nusica  for  the  sum  of 
1,500,000  francs  and  by  Fieri  Dominique  for  the  sum  of  3,730,000 
francs,  for  outrages  committed  against  their  persons  and  property  by 
the  people  and  authorities  of  Cariipano,  on  the  21st  of  June,  1805. 
Besides,  other  documents  have  been  presented  according  to  which 
Fieri  Dominique  &  Co.  claim  the  sum  of  280,400  francs  for  several 
acts  originated  by  the  war  during  the  years  1901  and  1902  in  the  city 
of  Cariipano,  and  which,  it  is  ;:lleged,  caused  damage  to  the  Tramways 
Enterprise,  the  property  of  Fieri  Dominique. 

Faragraph  3,  article  2,  of  the  proctocol  of  Faris,  dated  the  I'.tth  of 
February,  1902,  provides — 

that,  if  .several  claims  for  indenmities  based  on  different  facts  are  presented  by  the  .same 
claimant,  and  one  of  fhein  ¡s  in  the  ca^e  of  hdnij  mihni'itfi'd  to  (he  ¡troctalitiii  rstahHshttl  in 
article  2,  the  other  .shall  be  added  to  it  to  be  the  object  of  one  only  settlement. 

The  two  claims  for  indeiimity  presented  by  Fieri  Dominique  are 
based,  the  one  on  facts  that  took  place  in  the  years  1895  to  1890  and 


OPINION    OF    VENEZUELAN    COMMISSIONER.  187 

the  other  on  different  facts  occurred  m  1901  to  1902;  but,  as  the 
former  is  in  the  case  of  bein^  submitted  to  the  ])roceedin^  estabhshed 
in  article  2  of  the  protocol,  the  Letter  nmst  be  the  object  of  the  simul7 
taneous  examination  of  this  commission,  that  one  same  decision  may 
be  rendered  concernincî  both  of  them. 

The  claim  of  A.  L.  Nasica  is  based  on  the  following: 

Annex  No.  55: 

Francs. 
!.  Tlio  destruction  of  a  printing;  press  and  the  lolilx-iy  of  all    tlic   material 

and  merchandise GOO,  000 

2.  Tlie  lilows  and  wounds  received (KK),  ÍKH) 

3.  The  piiysical  and  moral  sufferings  undergone  on  account  of  the  persecu- 

tion of  whicli  lie  was  a  victim 300, 000 

Total 1,  500, 000 

That  of  Fieri  Dominique  : 

Francs. 

1.  The  al)and()innent  of  tlie  Tramways  Enterprise,  the  exclusive  privilege  of 
which  was  to  last  38  years  and  the  average  revenue  of  which,  taking  as  a 
basis  the  progressive  increase,  ma}'  be  valued  at  80,000  francs  a  year 3,  (XX),  000 

Annex  Xo.  55: 

2.  Damage  done  on    the  day  of   the  outrage,  destruction  of  the  printing 

press,  of  a  large  part  of  the  tramway  material,  robbery  of  diiïerent 

objects,  and  demolition  of  a  part  of  the  innnovable 70, 000 

3.  Forcible  and  diíKcult  realization,  in  view  of  the  absolute  want  of  security, 

of  twelve  houses,  the  yearly  rent  of  which  is  9,000  francs 300, 000 

4.  Tlie  physical  and  moral  sufferings,  traveling  expense,  and  residence  out 

of  Venezuela,  far  from  his  family 360, 000 

Total 3, 730, 000 

The  evidence  presented  vàth  regard  to  the  facts  to  which  these  two 
claims  are  confmed  having;  been  examined,  it  is  found:  That  Fieri 
Dominique  bouo;ht  this  enterprise  at  a  public  auction  on  the  8th  of 
May,  1891,  in  the  to^^^l  of  Cariipano,  from  the  liquidator  of  the  joint 
stock  company,  ''Tranvias  de  Carúpano,"  for  the  sum  of  38,500  bolivars. 
Fieri  Dominique  continued  the  exploitation  of  the  Carúpano  Tramway 
without  any  obstacle  until  early  in  ^larch,  1895,  when  he  desired  to 
l)uild  a  branch  line  to  have  waojons  pass  before  the  custom-house,  and 
carrying  out  tliis  purpose,  he  laid  the  rails;  that  this  being  done,  the 
collector  of  customs,  who  was  absent  from  the  place,  notified  him  on  his 
return  from  Caracas,  of  the  order  to  remove  the  rails,  because  they 
obstructed  the  traffic  indispensable  for  the  operations  of  the  custom- 
house; that  at  the  same  time  the  mimicipr.l  council  ordered  Fieri  to 
stop  the  works  he  was  doing  on  the  tramway  line  imtil  after  the  com- 
mission of  surveyors  appointed  to  that  purpose  should  report  as  to 
whether  said  works  did  or  not  interfere  with  the  free  traffic;  that  Fieri 
obeyed  the  order  of  the  council  and  even  requested  it  that  the  com- 
mission appointed  shoidd  be  at  once  directed  to  examine  the  points  of 
the  line  that  he  would  indicate  and  that  recpired  to  be  repaired  in 


188  DOMINIQUE    S¿    CO.   CASE. 

order  to  render  traffic  comfortable  and  secure;  that  the  commission 
rendered  its  report  jind  expressed  the  opinion — 

tliat  the  portion  of  the  hue  lying  Iwtween  the  wharf  and  tlie  custom-house  must  he  restored 
to  its  primitive  state — that  is  to  say,  to  that  \n  wliich  it  was  l)efnre  the  contract  with  Messrs. 
D.  Pieri  &  Co.  had  been  entered  into;  that  the  municipal  counril  approved  said  report  and 
ordered  the  same  to  1m?  transmitted  for  their  compliance  tliorewith  to  D.  Pieri  &  Co., 
said  company  being  free  to  estalilisli  the  branch  line  in  the  lower  part  of  the  mound,  wliich 
it  was  its  duty  to  previously  bring  to  the  knowledge  of  the  council,  as  well  as  any  other 
reformation  it  might  in  the  future  pretend  to  make  on  the  general  line. 

It  also  appei.red  to  be  proved  thîit  Pieri  Dominique,  who  considered 
himself  projiuiiced  in  the  rights  granted  him  l)y  his  concession,  did  not 
proceed  to  adduce  those  rights  in  a  contentious  action  before  the  com- 
petent tribunals  of  the  State,  in  conformity  with  article  S  of  his  con- 
tract, but  on  the  10th  of  June,  1895,  he  issued  a  flyin":  sheet,  entitled: 
"To  the  public  iind  to  justice,"  in  which  he  qualified  in  insolent  terms 
the  action  of  the  collector  of  customs  and  of  the  municipJ  council; 
that  a  few  days  after,  Pieri  Dominique,  beino^  associated  to  A.  L. 
Nasica,  placed  liim  in  charge  of  the  direction  of  a  printing  office  he  had 
in  the  s:,me  house  of  the  tramwa}"  station,  and  there  the  first  issue  was 
edited  of  a  newsp.iper  entitled  "El  Eco  del  Oriente,"  which  cont.ined 
an  editorial  article  written  by  Nasica,  offensive  to  the  local  constituted 
authorities  and  especi.  lly  depressive  for  the  people  of  Carúpano;  that 
on  the  21st  of  June,  two  days  after  the  appearance  of  said  news- 
paper, the  place  where  the  printing  press  was  was  invaded  by  a  group 
of  people,  who  had  a  quarrel  wdtli  Xasica,  the  result  of  which  was  that 
the  types  of  the  printing  press  were  thrown  to  the  street,  as  well  as  its 
materials;  that  Nasica  ñed  with  some  confusion;  that  Pieri  hid  in  the 
house  of  a  friend,  and  that  both  of  them  cautiously  embarked  two  or 
three  days  after  for  the  island  of  Trinidad. 

The  alarm  consequential  to  these  occurrences,  which  assumed  an 
especially  serious  character  for  the  numerous  French  colony,  that,  as 
is  well  known,  forms  the  princip.J  portion  of  the  merchants  of  Carú- 
pano, gave  occasion  to  the  fact  that,  the  very  day  said  occurrences  took 
place,  s:id  colony  published  a  manifestation  signed  by  its  principal 
members  (Annex  No.  57),  in  which  the  following  i)rotest  was  made: 

And  as  those  assertions  (those  copied  from  the  editorial  article  of  tiie  first  issue  of  El 
Eco  del  Oriente)  are  absolutely  untrue,  as  far  as  the  French  residing  in  this  region  of  the 
Repul)lic  are  concerned,  we,  as  citizens  of  France,  declare  that  far  from  lieing  the  objects 
of  hatred  and  persecutions  we  have  been  treated  l)y  thé  authorities  of  the  nation,  of  tlie 
state,  and  of  the  municipalities,  willi  tiie  same  consideration  they  bestowed  u|>on  us  before 
the  lamentable  interruption  of  (lie  diplomatic  relations  i)etween  Venezuela  and  ou?-  beloved 
native  land.  We  make  this  protest  because  we  believe  that  num  must,  in  ail  I  he  acts  of 
his  life,  profess  fealty  to  truth  and  justice. 

On  the  same  date  jinother  manifestation  wa.s  ptiblislied,  signed  l)y 
the  same  French  citizens,  together  with  some  Venezuelans  (Annex  No. 
57)  in  which  it  is  stated  : 

The  undersigned,  French  and  Vene/Aielan  citizens,  believe  it  to  be  their  duty  (o  make 
it  to  appear  that  wc  are  satisfied  with  the  actions  and  conduct  of  Gen.  Froilán  Caliman, 


OPINION    OF   VENEZUELAN    COMMISSIONER.  189 

the  collector  of  customs,  in  the  maritime  custom  oilice  at  this  poit,  who,  witliout  depart- 
ing from  the  route  of  the  law,  makes  efforts  to  contrive  the  means  of  facilitating  our  opera- 
tions with  said  office,  for  which  reason  we  recognize  in  this  official  a  good  servant,  who 
tries  to  maintain  the  national  Government  the  confidence  of  which  lie  enjoys,  in  high  repute  ; 
and  we  are  persuaded  that  his  presence  at  the  post  he  liolds  constitutes  a  guaranty  for  our 
interests  and  a  security  for  the  honest  merchants  of  the  East. 

The  aforesaid  protest  and  manifestation  are  signed  by,  besides  other 
respectable  members  of  the  French  cohinv,  Messrs.  Francesclii  &  Co., 
Joucla  &  Co.,  R:  Llh  Hernuinos,  Augustin  Lucca  &  Co.,  A.  VicentelH 
O.,  VicentelH  &  Sintelli,  Federico  Benedetti,  Andres  Pietri,  and  Juan 
A.  Auberon,  and  it  is  to  be  observed,  as  a  very  especi.J  circumstance, 
that  Messrs.  Franceschi  &  Co.  were  at  the  time  partners  of  Pietri 
Dominique  &  Co.  in  the  enterprise  of  the  Tramway  of  Carúpano, 

It  appears  proved  by  the  investigation  made  by  the  consular  agent 
of  France  at  Cariipino,  by  order  of  the  vice-consul  of  the  s.ime  nation 
in  Caracas,  and  by  the  answers  given  to  s.ád  consular  agent  by  Messrs. 
F.  Benedetti,  Dr.  B.  Bermiidez,  J.  Bl  scini,  F.  Massiani,  Santos  Ermini, 
J.  Yicentclli  O.,  and  Joaquin  Hiqacs  (Annex  D  No.  7)  : 
.  First.  That  a  mob  penetrated  the  house  where  Pieri's  printing  press 
was  and  threw  ill  the  utensils  of  the  printing  press  into  the  streets. 

Second.  That  the  enterprise  of  the  Tramway  suffered  nothing  by 
that  event,  it  being  untrue  that  a  part  of  the  tramway  station  was 
destroyed.  , 

Third.  That  what  happened  to  Pieri's  printing  press  was  due  to  an 
insulting  and  degrading  editori.il  article  of  the  paper  edited  at  said 
printing  office  and  directed  against  the  local  and  national  authorities 
and  the  citizens. 

Fourth.  That  it  was  the  people  who,  in  a  moment  of  indignation 
against  those  who  injured  it,  exercised  thut  vengeance. 

Fifth.  Th:it  it  is  untrue  that  the  mob  went  to  and  entered  the 
private  house  of  Pieri  Dominique. 

Sixth.  Th..t  no  superior  ofRci.l  of  the  custom-house,  no  member  of 
the  municip.l  council,  no  local  authority  was  among  the  ass.tilants  of 
the  printmg  press. 

Seventh.  That  the  police  only  arrived  too  late  at  the  place  where  the 
event  took  place  and  th:.t  it  did  not  know  how  to  show  the  energy  or 
the  activity  necessary  to  prevent  the  disorder. 

Eighth.  That  Pieri  and  Nasica  were  hidden  for  two  or  three  days  in  a 
j)riv¿.te  house  and  then  abandoned  the  coimtry,  going  by  land  via  Rio 
Caribe  and  Y;  guaraparo. 

Ninth.  That  there  was  no  arrest  and  no  investigation  made  by  the 
local  authorities;  and 

Tenth.  That,  in  view  of  the  condition  of  the  printing  press,  that  was 
worked  by  the  hands  and  the  long  time  it  had  been  in  use  those  who 
knew  it  only  give  it  a  value  of  4,000  francs. 


190  DOMINIQUE    ¿¿    CO.    CASE. 

For  the  best  appreciation  of  these  events  the  Veneznelan  arbitrator 
considers  the  definition  given  by  the  vice-consul  of  France  in  Caracas 
in  an  oííicial  note  dated  the  ôth  of  May,  1896,  addressed  to  his  excel- 
lency Mr.  llanotaux,  the  minister  of  foreign  affairs  of  France,  of  the 
character  of  the  two  parties  interested  in  the  claim,  Messrs.  Fieri  and 
Nasica,  in  the  following  words: 

Mr.  Piori  has  a  pretty  great  natural  intelligence,  ver^'  little  iiistruetioii,  an  iron  temper, 
and  an  obstinacy  e(jual  to  his  temper,  lie  posses,ses  a  most  inveterate  .sentiment  of  prop- 
ert}-,  and  openly  resists  whom.soever  violates  his  rights,  and  that  with  very  little  patience, 
for  his  violent  temper  is  not  guided  hy  learning  or  prudence. 

Mr.  Xasica  is  little  recommcndable  a  personage,  who  puts  his  intelligence  and  learning 
to  the  service  of  all  his  vices.     Wherever  he  has  been  he  has  left  victims. 

And  further  on  the  same  note  says: 

As  Mr.  Fieri  had  a  printing  press,  Nasica,  who  has  an  easy  pen,  advised  Pieri  to  establi.sh 
a  newspaper  to  defend  his  interests  and  those  of  the  colony.  No  member  of  the  colony 
approved  this  idea,  but  Mr.  Pieri,  mastered  by  Nasica  and  feeling  aggrieved  in  his  interests, 
accepted  the  proposal,  and  El  Eco  del  Oriente  was  established.  The  terms  of  its  articles 
are  veiy  violent  and  could  only  be  permitted  to  the  natives. 

The  opinion  expressed  by  the  vice  consul  of  France  regarding 
Nasica  is  ratified  in  more  vivid  colors  in  the  statement  made  by  Mr. 
Jean  Toussaint  Santi,  a  proprietor  at  Ajaccio  (Corsica),  before -the 
minister  of  foreign  affairs  of  Venezuela  on  the  18th  of  August,  1895, 
a  copy  of  which  is  inserted  in  these  records.     Santi  states  therein — 

that  he  knew  Nasica  as  being  a  man  capable  of  all  the  acts  of  meanness  that  a  perverse 
mintl  might  perform,  and  that  he  knew,  moreovei',  that  he  belongs  to  a  family  of  outlaws 
and  criminals. 

It  does  not  appear  in  the  records  that  Nasica  took  any  other  step 
after  he  presented,  in  company  with  ^Ir.  Fieri,  to  the  governor  of 
Martini{|ue  his  claim  for  a  part  of  the  indemnity,  amounting  to 
1,500,000  francs,  in  which  he  entered  as  pertaining  to  him  the  same 
printing  press  pertaining  to  Pieri  and  valued  it  at  the  sum  of  (300.000 
francs.  After  having  taken  into  consideration  all  the  foregoing  state- 
ments, which  are  proved  by  the  records,  the  Venezuelan  arbitrator  is 
oí  opinion  that  the  destruction  of  the  printing  press  of  Mr.  Pieri 
Dominique  was  the  deed  of  a  popular  vengeance  against  those  appear- 
ing responsible  for  the  injurious  writings  of  the  newspaper  which  was 
edited  in  said  printing-press;  that  the  enterprise  of  the  tramway  did 
not  sustain  any  damage  through  those  occurrences,  and  it  appears 
from  the  records  that  the  service  of  the  enterpri.se  was  not  interrupted; 
that  the  damage  done  to  Pieri  by  the  destruction  of  the  printing  press 
does  not  exceed  4,000  bolivars,  and  that  for  said  damage  only  the 
authors  of  or  accomplices  in  the  aggression  were  responsible;  that  (his 
resj)onsil)ility  ought  to  have  been  alleged  in  plea(hng  by  (he  oiwner  of 
the  printing  press  against  those  condenmed  as  authors  of  or  accom- 
plices in  the  facts  occurred  on  the  21st  of  June,  1895;  (hat  the  want  of 


OPINION    OF    VENEZUELAN    COMMISSIONER.  1',>1 

energy,  of  which  the  poHce  gave  proofs,  to  stop  or  prevent  the  aggres- 
sion of  the  mob,  and  the  omission  on  the  part  of  the  competent 
authorities  to  have  the  preparatory  proceedings  instituted  in  order  to 
prosecute  the  respective  criminal  suit  against  those  appearing  to  be 
guiUy,  render  them  hable  to  responsibility  for  noncompliance  with 
their  duties;  that  it  must  also  be  taken  into  consideration  that  the 
conduct  of  Fieri  and  Nasica  renders  them  largely  responsible  for  the 
provocation  that  gave  rise  to  the  popular  mol). 

Appreciating  in  a  spirit  of  justice  all  these  circumstances,  the  Vene- 
zuelan arbitrator  is  therefore  of  opinion  that  the  largest  indemnity  to 
be  allowed  to  Fieri  Domini(|ue  for  the  destruction  of  his  printing  press 
and  the  tlamages  wliich  were  the  consecpience  thereof  is  the  sum  of 
20,000  bolivars,  and  he  hereby  allows  it  for  this  respect. 

In  regard  to  the  other  facts  and  consequences  alleged  by  the  claim- 
ant relative  to  the  enterprise  of  the  tramway,  to  the  abandonment 
thereof,  the  forcible  antl  diilicult  disposal  of  the  houses  pertaining  to 
him,  and  to  moral  sufferings  ])roceeding  from  his  being  far  from  his 
family,  they  are  destitute  of  all  ground  and  proof  and  are  inconsistent 
to  serve  as  the  basis  of  the  claim  he  pretends. 

Far  from  proving  that  Fieri  Dominic|ue  abandoned  his  enterprise 
on  account  of  the  events  of  the  21st  of  June,  1895,  the  documents 
produced  show  that  the  tramway  continued  to  run  without  interrup- 
tion immediately  after  those  events  and  that  the  exploitation  of  the 
business  was  continued  for  several  years;  that  Fieri  Dominique 
returned  to  Cariipano  in  March,  1S96,  and  resumed  the  management 
of  his  enterprise  without  any  menace  or  aggression  against  his  person  ; 
that  according  to  the  avowal  made  by  Fieri  before  this  tribunal,  as 
appears  from  the  records  of  the  proceedings  of  the  sitting  of  the  9th 
instant.  Fieri  bought  five  or  six  years  ago — that  is  to  say,  after  the 
occurrences  of  the  21st  of  June,  1895 — from  the  firm  of  Franceschi  & 
Co.,  which  was  associated  in  the  enterprise  of  the  tramway,  the  interest 
of  the  latter  in  the  business  for  the  sum  of  24,000  francs,  which  fact 
evidently  proves  that  the  assertion  is  gromifUess  that  Fieri  was  com- 
pelled to  give  up  the  enterprise,  for  the  abandonment  of  wliich  he 
claims  the  sum  of  3,000,000  francs. 

The  (|uestions  arisen  between  the  municipal  council  of  Cariipano  and 
the  enterprise  of  the  tramway  on  account  of  the  drawing  of  the  line, 
of  the  construction  of  the  waterworks  and  the  breaking  of  a  bridge  by 
the  rains,  which  have  been  alleged  to  show  the  animosity  of  the  author- 
ities against  the  enterprise,  do  not  absolutely  prove  that  attitude. 
These  questions  are  those  that  ordinarily  occur  between  mimicipal 
corporations  and  the  enterprises  directly  connected  with  the  traille  and 
|)ublic  works  in  the  streets  of  a  town.  The  local  laws  and  the  con- 
tracts provide  the  manner  in  which  they  are  to  be  determined,  the 
interested  parties  applying  in  due  time  to  the  competent  judicial 


192  DOMINIQUE    óí    CO.   CASE. 

officials.  It  appears  from  the  records  that  Fieri  Dominique  abstaine»! 
from  following  the  procedure  established  by  the  laws  and  by  his  con- 
tract and  accepted  the  facts,  coniinuing  the  exploitation  of  the  tram- 
way under  tlie  conditions  and  circumstances  that  were  the  result  of 
the  report  of  the  commission  of  surveyors  and  of  the  orders  of  the 
municipal  council  of  Canlpano.  As  regards  the  construction  of  the 
waterworks,  if  they  temporarily  prejudiced  the  interests  of  the  tram- 
way company,  it  had  an  action  against  the  joint  stock  compan}' 
"Acueducto  de  Canlpano,"  of  which  Mr.  Vicente  Giuliani  F'ranceschi, 
a  member  of  the  firm  P^ranceschi  &.  Co.,  associated  in  the  enterjiri.se 
of  the  tramway,  was  the  president.     (Annex  50.) 

For  all  the  reasons  aforesaid  the  Venezuelan  arbitrator  considers 
entirely  groundless  the  claim  for  indemnity  entered  by  Fieri  Domini(|ue 
against  the  Government  of  Venezuela,  as  far  as  it  concerns  the  enter- 
prise of  the  tramway  of  Cariipano  up  to  the  23d  of  May,  1899,  amount- 
ing to  the  sum  of  3,600,000  bolivars. 

Fosterior  to  that  date  it  appears  proved  that  ft'om  March.  1902,  on 
account  of  the  several  attacks  that  the  town  of  Cariipano  has  suiTered 
on  the  part  of  revolutionary  troops  and  of  the  National  Government 
the  enterprise  of  the  tramway  has  sustained  damages,  its  traffic  having 
been  completely  interrupted;  that  at  several  points  the  rails  have  been 
forced  out  and  the  line  cut  by  barricades;  that  the  draft  aninuds  of  the 
tramway  were  taken  by  the  military  forces  commanded  by  Gen. 
Calixto  Escalante;  that  the  wagons  and  carts  have  sustained  deterior- 
ations and  are  unserviceable  on  account  of  the  occupation  of  the  sta- 
tion and  depot  buildings  by  troops  of  the  government  quartered 
therein.  It  also  appears  proved  that  Fieri  Domini(iue  is  compelled 
to  abandon,  as  he  did,  the  exploitation  of  his  contract  l)V  the  circum- 
stances narrated  and  that  in  virtue  of  that  abandonment  he  has  offered 
before  the  legation  of  France  to  leave  the  depot  building,  the  rails, 
wagons,  and  all  the  materials  and  implements  used  in  the  e\i)loitatit)n 
to  the  benefit  of  the  municipal  council  of  Cariipano,  putting  an  em! 
to  the  concession  and  waiving  any  claim  that  might  derive  therefrom 
in  his  behalf.  Appreciating  in  their  just  value  the  damages  sustained 
by  the  enterprise /rom  the  interruption  of  the  traffic  in  March,  1902,  and 
the  seizure  of  its  animals  vp  to  the  last  occurences  the  ciiuitable  and 
proved  value  of  the  materials,  deposit,  and  of  all  that  constituted  its 
working  capital,  which,  as  appears  from  the  records,  cost  for  Fieri  the 
sum  of  62,000  bolivars,  as  well  as  of  the  other  circumstances  which 
represent  for  Fieri  the  gain  frustrated  of  his  enterprise,  aiul  in  view  of 
the  circumstances  under  which  the  town  of  Cariipano  had  been  placed, 
on  account  very  es|)ecially  of  the  contimied  revolutions  which  frt)in  four 
years  ago  have  rendered  that  kind  of  enterprise  almost  unproductive, 
even  in  towns  like  Caracas,  which  have  not  been  the  tlieater  of  deeds 
of  arnls,  the  arbitrator  is  of  opinion  that  the  largest  indemnity  that 


OPINION    OF    FRENCH    COMMISSIONER.  193 

may  be  allowed  to  Fieri  Domini((ue  for  all  those  reasons  is  the  sum  of 
150,000  bolivars. 

As  to  the  claim  of  L.  Nasica  for  the  sum  of  1 ,500,000  francs,  Nasica 
having  no  right  to  the  printing  press  destroyed,  no  share  pertains  to 
him  in  the  indemnity  allowed  for  said  destruction;  and  as  the  other 
particulars  on  which  he  bases  his  claim  for  indemnity  are  entirely 
groundless  and  show  by  themselves  the  indecorous  condition  of  this 
claim,  it  is  absolutely  disallowed. 

In  short,  the  Venezuelan  ar])itrator  is  of  opinion  that  as  full  indem- 
nification the  sum  of  170,000  bolivars  should  be  allowed  to  Fieri,  with 
the  declaration  of  his  abandoning  in  favor  of  the  municipal  council  of 
Carúpano  the  concession  of  the  tramway,  the  depot,  the  stock  in 
hand,  and  all  the  material  of  exploitation. 

Caracas,  May  12,  1903. 

NOTE    BY    THE    VENEZUELAN    COMMISSIONER. 

Francs. 
This  claim,  in  its  part  concerning  Picri  Dominique  &  Co.  and  Pieri  Dominique, 

for  the  sums  of 3,  730, 000 

and 280,  400 

Total 4, 010,  400 

was  accepted  by  the  French  arbitrator  for  the  sum  of  600,000  bolivars,  rejecting  the  claim 
of  Nasica  for  1,500,000  francs.  The  part  relative  to  Pieri  was,  therefore,  referred  to  the 
decision  of  the  umpire. 

Caracas,  the  date  above  written. 


OPINION  OF  THE  FRENCH  COMMISSIONER. 

As  is  shown  by  the  minutes  of  the  session  of  the  mixed  commission 
of  May  12,  1903,  the  Venezuelan  and  French  arbitrators  have  both 
considered  that  Mr.  Fieri  had  presented  a  well-founded  claim  and  that 
he  was  entitled  to  an  indemnity.  But  Doctor  Faiil  and  myself  have 
differed  in  opinion  upon  the  amount  of  this  indemnity.  While  I  have 
reduced  to  600,000  bolivars  the  sum  of  4,010,400  bolivars  claimed 
by  the  party  interested,  my  colleague  has  reduced  it  to  170,000  bolivars. 
It  is  to  be  noted  that  the  Venezuelan  arbitrator,  in  conformit}^  with  the 
opinion  of  the  French  arbitrator,  has  pronounced,  like  him,  the  rescis- 
sion of  the  contract  which  bound  the  contractor  to  the  municipality  of 
Carúpano  to  abandon  to  this  latter  in  exchange  for  an  indemnity  "the 
concession  of  the  tramway,  the  depot,  and  the  material  which  consti- 
tutes the  exploitation  of  the  line."  Doctor  Faúl  is  then  convinced  that 
Mr.  Fieri  finds  himself,  not  through  his  own  fault,  but  because  of  a 
position  he  has  been  compelled  to  assume,  unable  to  recommence 
work  in  his  concession,  and  this  inability,  in  my  opinion,  is  not  due  to 
a  state  of  war.  It  is  solely  based  upon  the  malevolence  of  the  munici- 
pality of  Carúpano  and  the  determination  of  the  authorities  of  the 
S.  Doc.  533, 59—1 13 


194  DOMINIQUE    &    CO.    CASE. 

State  and  the  city  to  deprive  Mr.  Fieri  of  a  concession  thoy  wish  to 
operate  themselves.  At  the  time  of  my  visit  to  Carúpano  I  was 
able  to  prove  de  iñsu  that  the  last  war  had  completely  arrested  the 
exploitation;  the  rails  had  been  torn  up  and  in  several  ])laces  had  been 
cut  in  two  by  four  barricades.  The  depot,  which  had  been  u.sed  for  a 
military  hospital,  was  partly  demoli.shed  by  shells,  and  the  cars  had 
nearly  all  been  put  out  of  service,  but  all  these  damages  were  reparable. 

Since  March,  1903,  Carúpano  has  been  cleared  of  revolutionary 
bands.  Since  the  month  of  July  last  the  present  Government  has 
finally  triumphed  over  the  revolution  and  caused  peace  to  reign 
throughout  the  Venezuelan  territory.  Dossier  No.  8,  prepared  after 
May  12,  1903,  proves  that  Mr.  Fieri  was  not  able  to  take  up  the 
exploitation  of  his  enterprise  because  of  the  hostility  of  a  part  of  the 
population,  hostility  which  has  the  same  causes  as  the  malevolence  of 
the  State  and  municipal  authorities,  if  indeed  the  latter  does  not 
explain  and  has  not  created  the  former. 

Why,  then,  after  having  recognized  implicitly  the  impossibility  of 
Mr.  Fieri's  renewing  the  exploitation,  does  Doctor  Faill  refuse  "to 
acknowledge  for  the  interested  party  the  right  to  an  indemnity,  from 
the  fact  of  his  dispute  with  the  municipal  authorities,"  when  the  said 
"disputes"  (démeles)  have  truly  caused  this  impossibility?  More- 
over, does  not  this  refusal,  following  the  payment  of  the  indemnity  of 
170,000  bolivars  for  damages  caused  by  the  incident  of  1895  and  the 
civil  war,  show  clearly  that  even  in  the  mind  of  the  Venezuelan  arbi- 
trator the  170,000  bolivars  do  not  represent  an  indemnity  suilicient 
for  all  the  damages  of  every  nature  to  which  Mr.  Fieri  was  subjected, 
including  the  loss  of  the  concession? 

In  fixing  at  600,000  bolivars  the  indemnity  to  be  accorded  to  Mr. 
Fieri,  who  claimed  4,010,400  l)olivars,  I  have  desired  to  accord  him  a 
sum  which  might  represent  exactly  the  material  damage  which  has  been 
caused  him.  I  have  not  wished  to  increase  it  by  a  special  indemnity 
which  would  be  of  a  penal  character  for  the  State  and  municipal 
authorities.  The  latter,  however,  would  have  merited  it  because  of 
the  stubbornness  with  which  they  have  unjustly  pursued  and  tor- 
mented a  citizen  stranger,  the  possessor  of  a  perfectly  regular  con- 
tract. It  seems  from  numerous  authentic  ])ieces  of  evidence  contained 
in  the  dossier  and  from  information  that  I  have  gathered  on  the 
spot  that  the  enterprise  of  the  tramway  of  Carúpano  has  brought  in 
and  can  bring  in  for  the  future  to  the  concessionary'  from  30,000  to 
40,000  bolivars  a  year.  If  one  does  not  take  into  account  the  high 
return  of  money  in  Venezuela,  more  than  a  million  of  cajiital  should  be 
allowed  to  Mr.  Fieri.  On  tlie  other  hand,  it  is  well  to  remark  that 
according  to  the  common  opinion  of  the  two  arbitrators  Mr.  Fieri 
ought  to  abandon  the  concession  to  the  nniiucipality.  The  latter  will 
be  anxious  to  exploit  it,  and  the  beneiits  which  it  will  receiv  will  rep- 


ADDITIONAL    OPINION    OF    VENEZUELAN    COMMISSIONER.        195 

resent  almost  exactly  in  capital  the  indemnity  accorded  to  Mr.  Fieri. 
Venezuela  would  thus  withdraw  without  (lisadvanta<;ofrom  the  unfor- 
tunate position  in  which  the  actions  of  the  local  authorities  of  Cariipano 
have  thrust  her. 

Finally,  it  is  to  be  considered  that  according  to  the  terms  of  the 
protocol  tliis  indemnity  must  be  paid  in  bonds  of  the  diplomatic  debt 
and  not  in  gold.  From  the  fact  of  this  concession  consented  to  by  the 
French  Government  to  permit  the  Venezuelan  Government  to  settle 
its  debts  with  greater  ease  the  amount  of  the  indemnity  is  found  to  be 
really  reduced.  The  real  amount  of  these  bonds  is  far,  at  this  time, 
from  reaching  half  their  nominal  value.  The  granting  to  Mr.  Fieri  of 
an  indemnity  of  600, OOO  bolivars  would  then  permit  the  Venezuelan 
Government  to  free  itself  for  240,000  or  250,000  bolivars  from  a  claim 
the  settlement  of  which  would  assure  to  the  Venezuelan  nflministra- 
tion  an  annual  income  of  30,000  to  40,000  bolivars, 

March  25,  1904. 

ADDITIONAL  OPINION  OF  THE  VENEZUELAN  COMMISSIONER. 

I  must  call  the  honorable  umpire's  attention  to  the  fact  that  when  I 
agreed  in  the  opinion  of  the  French  commissioner  declaring  the 
rescission  of  the  contract  binding  the  claimant  to  the  municipality  of 
Carúpano,  and  the  abandonment  to  the  latter,  for  an  indemnification 
of  the  concession,  such  as  it  is,  the  deposit  made  and  the  materials 
destroyed  or  damaged,  for  which  in  my  opinion  I  stated  that  Mr. 
Fieri  should  also  be  indemnified,  I  was  not  prompted  by  the  fact,  as 
the  French  commissioner  avers,  that  I  was  convinced — 

that  Mr.  Pieri  finds  liimself,  not  through  his  own  fault,  but  because  of  a  position  lie  has 
been  compelled  to  assume,  unable  to  recommence  work  in  his  concession, 

and — 

that  inability  is  not  due  to  a  state  oi  war,  adds  my  colleague,  but  is  solely  based  upon  the 
malevolence  of  the  municipality  of  Cariipano,  and  the  determination  of  the  authorities  of 
the  State  and  the  city  to  deprive  Mr.  Pieri  of  a  concession  they  wished  to  operate  themselves. 

In  my  written  opinion  read  at  the  meeting  of  Ma}''  12,  1903,  which, 
translated  into.  English,  I  submit  herewitli  to  the  honorable  umpire, 
there  is  nothing  whatever  to  show  the  conviction  ascribed  to  me  by 
my  learned  colleague,  and  I  can  not  let  such  statements  go  unchal- 
lenged, as  such  motives  are  entirely  foreign  to  the  reasons  I  had  to 
form  my  opinion  in  this  case. 

I  have  declared  the  rescission  of  the  contract  between  Mr.  Fieri  and 
the  municipalit}^  of  Cariipano,  because  from  the  statements  made  by 
Mr.  Fieri  in  his  claim,  his  decided  will  to  discontinue  the  operation  of 
the  Cariipano  tramway  is  clearly  shown,  and  because  about  the  time 
the  claim  was  entered  (Fe})ruary,  1903)  and  at  the  time  we — -the  two 
commissioners — rendered  our  decision  (May  13, 1903),  Carúpano  was 


196  DOMINIQUE    cV    CO.   CASE. 

in  a  state  of  sietje  because  of  the  continuation  of  the  revolutionary 
movement  led  by  General  Rolando,  whidi  ended  in  July,  after  the 
attack  and  capture  of  Ciudad  Bolívar.  These  facts  are  universally 
known. 

1  have  endeavored,  in  my  opinion,  since  Mr.  Fieri  showed  liis  |)ur- 
pose  to  abandon  the  operation  of  the  tramway  and  in  \new  of  tlie  fact 
that  the  circumstances  at  the  time  did  not  permit  the  immediate 
renewal  of  the  operation  of  the  line  because  of  the  seÍ7Aire  and  destruc- 
tion of  the  materials,  to  conciliate  the  private  interests  of  the  claimant 
and  his  manifest  will  to  abandon  the  business,  with  the  interests  of  the 
community,  which  could  not  be  left  at  the  mere 3^  of  a  person  who, 
durino:  his  intercourse  with  the  local  authorities,  had  shown  himself  not 
to  be  animated  by  a  conciliatory  spirit,  but,  on  the  contrary,  by  the 
earnest  desire  to  constantly  j)rovoke  disafîreements  and  scandals. 

To  estimate  the  amount  of  a  just  indemnification,  I  have  used  the 
data  furnished  by  the  documents  submitted  on  the  real  cost  of  the 
business,  the  value  of  the  building  or  depot  and  that  of  the  rollino; 
stock,  cars  in  use,  and  animals.  I  have  not  estimated  anj^  exaj;- 
gerated,  imaginary,  or  eventual  profits,  because  the  determination  of 
Mr.  Fieri  to  discontinue  the  operation  of  the  tramwa}"  line  plainly 
showed  that  the  business  does  not  yield  profits,  but  losses,  because  of 
the  decline  of  business  in  Venezuela  by  reason  of  continued  revolu- 
tions and  the  considerable  falling  off  in  price  of  the  principal  export 
product  of  the  country.  In  proof  of  this,  there  is  the  fact  that  the  two 
tramway  lines  existing  in  Caracas,  where  there  has  been  no  fighting 
and  where  there  is  a  poi)ulation  of  <S0,00()  inhabitants,  have  not  been 
able  to  pay  dividends  to  their  stockholders  for  the  last  four  j^ears,  and 
that  the  stock  is  quoted  below  50  per  cent. 

The  decided  purpose  the  French  commissioner  ascribes  to  the 
authorities  of  the  State  and  the  city  of  depriving  Fieri  of  the  grant 
they  wish  to  operate  themselves  does  not  seem  to  have  other  founda- 
tion than  the  statement  made  by  the  Fren-^h  consular  agent  in  a  com- 
munication to  his  minister  in  Faris  Febriiary  10,  1897,  to  the  efi'ect 
that  General  Rolando,  then  Fresident  of  the  State  of  Bermiidez,  had 
made  Mr.  Fieri  a  proposition  to  buy  the  tramway  foj-  a  sum  in  the 
neighborhood  of  35,000  francs.  General  Rolando  ceased  to  be  the 
(ihief  authority  of  the  State  of  Bermiidez  eigl.t  years  ago,  and  it  has 
not  been  established  that  the  authorities  which  succeeded  him  in  the 
State  and  city  of  Cariipano  have  desired  either  to  buy  or  to  take  the 
business.  The  sum  of  .35,000  francs  which  we  are  told  General 
Rolando  oilered  diiring  an  era  of  peace  and  prosperity  in  the  State  of 
Bermúdez  being  far  below  the  sum  I  have  granted,  plainly  .shows  how 
exaggerated  is  the  estimate  made  by  my  learned  colleague,  (ixing  in 
the  sum  of  000,000  bolivars  the  indemniiication  of  Mr.  Fieri. 


ADDITIONAL    OPINION    OF    VENEZUELAN    COMMISSIONER.        197 

I  had  not  il  mind,  as  my  learned  colleague  implies  in  his  brief,  when 
I  declared  for  the  abandonment  by  Mr.  Fieri  of  t^-^e  tramway  conces- 
sion to  the  municipality,  that  the  latter  would  hasten  to  operate  it  and 
that  the  profits  derived  from  such  operation  should  approxhnately 
represent  tire  indemnity  granted  Mr.  Fieri.  Far  from  tliis,  my  sine  ere 
belief,  which  no  one  can  suspet  t  of  being  biassed,  is  that  under  the 
present  condition  of  business  in  Venezuela,  and  especially  in  the  towns 
of  the  eastern  section  of  the  country,  which  have  suffered  more  than 
any  others  from  the  effects  of  the  last  revolution,  the  operation  of  a 
tramway  line  in  a  town  like  Cariipano  is  unproductive  and  that  neither 
the  authorities  nor  the  municipality  of  that  city  have  any  interest 
whatever  in  becoming  the  owners  of  such  line.  I  make  this  st  it'Muent, 
in  case  the  honorable  umpire  should  in  his  award  deem  t  more 
equitable  for  both  parties  that  Mr.  Fieri  continue  the  operation  of  the 
concession  of  the  Carúpano  tramway,  since  he  now  desires  it,  during 
the  years  his  contract  has  to  run  and  to  limit  the  indemnification  which 
should  then  be  granted  to  liim  to  the  value  of  the  mules  and  material 
either  lost  or  damaged  by  the  Government  forces  during  the  military 
operations  of  the  last  war. 

This  statement,  which  I  make  as  the  commissioner  for  Venezuela,  is 
the  more  indispensable,  as  in  the  latest  brief  submitted  by  the  French 
commissioner  it  is  not  only  stated,  but  affirmed,  that  according  to 
evidence  obtained]  after  May  12,1 903 — date  of  our  respective  opinions — 
Mr.  Fieri  has  been  preventefi  from  renewing  the  operation  of  the  tram- 
way because  of  the  hostility  shown  by  a  portion  of  the  inhabitants  of 
C^ariipano.  Wliile  this  assertion  has  no  other  support  than  the  word 
of  the  party  concerned  and  lacks  corroboration  by  trustworthy  evi- 
dence to  give  it  weight,  it  shows  the  intention  to  convey  to  "the  mind  of 
the  honorable  umpire  an  impression  different  from  the  true  situation 
which  the  Carúpano  tramway  concern  occupies  as  a  profitable  business 
in  order  to  obtain  a  compensation  for  ñiture  profits  entirely  unjustified. 
On  the  other  hand,  the  notes  and  letters  appended  to  the  brief  of  the 
French  commissioner,  as  Exhibit  8,  deal  with  facts  subsecpent  to 
May  12,  1903,  when  the  two  commissioners  investigated  and  rendered 
their  decision  on  Mr.  Fieri's  claim,  and  the  producticm  of  the  same  at 
this  time  before  the  lionorable  umpire  is  contrary  to  the  rules  of  pro- 
cedure governing  this  commission,  since  it  can  not  deal  with  facts  other 
than  those  which  have  taken  place,  according  to  the  extended  juris- 
diction granted  by  paragraph  2,  article  2,  of  the  Faris  protocol,  up  to 
the  date  of  the  23rd  of  May,  1903. 

I  must  take  advantage  of  this  opportunity  to  challenge  the  state- 
ment made  by  the  French  connnissioner  at  the  end  of  ever}'  one  of  his 
briefs  of  the  fact  that,  according  to  the  terms  of  the  protocol,  the 
indemnities  awarded  by  this  commission  are  payable  in  3  per  cent 
bonds  of  the  diplomatic  debt,  and  that  from  this  concession  granted  by 


198  DOMINIQUE    A'    CO.    CASK. 

the  Government  of  France  to  that  of  \'eneziiela  to  facilitate  tlie  ])ay- 
ment  of  the  latter's  (le])ts,  it  appears  that  the  amount  of  the  indemnity 
is  gjroatly  rethicod  at  ]>resent,  as  tlie  real  value  of  said  bonds  is  not  one- 
half  of  their  nominal  value.  The  honorable  umpire  will  fmd  on  page 
499,  W'uczuelan  Arbitrations  of  1903,  Ralston's  Keport,  in  the  case  of 
the  Decaiiville  Company  before  this  same  commission,"  my  opinion  as 
the  Venezuelan  commissioner,  altogether  rejecting  the  claimant's  con- 
tention that  an  allowance  should  be  made  to  compensate  for  the  lowest 
cash  value  the  bonds  of  the  iliplomatic  debt  might  obtain.  The  Frene  h 
commissioner,  in  his  decision,  concurred  in  my  o])inion,  by  which  it 
was  acknowledged  that  the  commission  had  no  jurisdiction  to  alter  or 
change  the  method  of  payment  establi.shed  by  the  ])rotocol,  by  advanc- 
ing theories  which  might  ail'ect  the  nominal  value  of  the  bonds  of  the 
diplomatic  debt,  as  such  method  of  settlement  on  the  ])art  of  A'ene- 
zuela  of  the  sums  awarded  by  the  commission  was  a  matter  exclusively 
concerning  the  two  contracting  parties  and  in  no  wise  suliject  to  the 
jurisdiction  of  the  arbitration  commission,  called  upon  to  examine 
only  the  proofs  of  the  facts  and  the  justice  and  sound  foundation  of  the 
claims  for  indemnification,  estimating  the  measure  of  danuiges  by  the 
established  proof  of  such  damages  and  not  by  the  kind  of  money, 
whether  cash  or  bonds,  in  which  Venezuela  is  to  discharge  the  awarded 
liabilit}^. 

In  regard  to  the  other  points  covering  my  estimation  of  the  damages 
which  I  deem  justified  in  the  claim  of  Mr.  Fieri,  the  liability  affecting 
the  Venezuelan  Government  by  reason  of  certain  established  facts  ami 
the  amount  of  indemnitj^  I  have  granted  for  the  abandonment  or  rescis- 
sion of  the  tramway  contract,  taking  into  consideration  the  value,  as 
appearing  from  the  proofs,  of  such  business  and  the  fair  compensation 
for  the  price  of  the  concession  as  an  industrial  investment,  I  hereby 
ratify  in  all  its  parts  niy  opinion  of  May  12,  1903,  whereby  I  allow  for 
all  indenmilication  the  sum  of  170,000  bolivars. 

NoRTHFiELD,  Vt.,  februavyS,  1905. 


ADDITIONAL  OPINION  OF  FRENCH  COMMISSIONER. 

After  having  read  the  additional  opinion  of  my  honorable  colleague, 
I  can  only  maintain  the  conclusions  of  my  memoir.  T  think  T  ougiit, 
moreover,  to  make  the  following  observations: 

My  honorable  colleague  declares  that  in  his  opinion  one  can  not  raise 
anything  which  indicates  his  conviction  that  Mr.  Fieri  finds  himscdf, 
not  by  his  own  fault,  but  from  the  fact  of  the  situation  which  is  thrust 
u])on  him,  unable  to  renew  the  exploitation  of  his  concession.  It  is, 
however,  it  seems  to  me,  the  logical  conclusion  which  can  be  lirawn 

o  Appendix  herein,  p.  45G. 


ADDITIONAL    OPINION    OF    FRENCH    COMMISSIONER.  199 

from  the  decision  rendered  by  Doctor  Paúl.  If  he  does  not  have  this 
conviction,  why  has  he  accepted  the  rescission  of  the  contract  which  I 
have  judged  equitable  and  necessary  ?  It  is  not,  I  imagine,  merely  to 
be  agreeable  to  Mr.  Fieri.  It  is  really  because  my  honorable  colleague 
has  thought,  as  I  have,  that  the  position  of  the  claimant  was  such  that 
circumstances  infle  pendent  of  his  will  prevented  him  absolutely  from 
renewing  the  exploitation  of  his  concession.  Only  Doctor  Paúl  is  of 
the  oi)inion  that  the  ruin  of  Mr.  Fieri  is  due  merely  to  the  hin(h-ances 
which  the  revolution  has  placed  in  the  way  of  the  exploitation,  while  I 
consider  that  to  these  hindrances  ha?  come  to  be  added  the  open  and 
declared  hostility  of  tlie  Vene'"''ue'an  .uth^rities  which  was  manifested 
repeatedly  several  years  before  the  commencement  o'^  i-he  revolutions. 

If  one  refers  to  the  text  of  the  minutes  of  the  sitting  ot  May  12,  1903, 
he  may  read  there  the  phrase  whicii  I  have  cited.  Doctor  Paúl  "re- 
fuses to  acknowledge  for  the  interested  party  the  right  to  an  indemnity 
from  the  fact  of  liis  dispute  with  the  municipal  authorities."  I  have 
the  right  to  conclude  from  tins  that  the  indemnity  accorded  by  J3octor 
Paúl  represents  merely  the  damages  caused  by  the  revolution  and  is 
not  a  sufficient  compensation  for  the  losses  sustained  by,  Mr.  Fieri.  It  is 
suilicient  to  review  the  dossier  to  note  the  fact  thatfrom  1895  to  1899 — 
that  is  to  say,  during  a  period  previous  to  the  revolution — Mr.  Fieri  was 
the  butt  of  continual  persecutions  from  the  Venezuelan  authorities. 
At  every  moment  they  stopped  liis  tramways  under  (Ufferent  pretexts, 
they  created  difíiculties  for  him  at  pleasure,  they  chose  as  if  by  chance 
the  place  where  the  tracks  were  established  to  pass  canals  which  they 
might  have  placed  farther  away,  etc. 

The  umpire  mil  be  able  to  convince  himself  of  these  facts  by  perus- 
ing the  dossier.  It  is  these  repeated  manifestations  of  the  municipal- 
ity of  Carúpano  wlúch  have  convinced  me  that  the  latter  wished  to 
exploit  itself  the  line  of  tramways,  and  that  it  was  trying  by  all  possible 
means  to  dispossess  the  concessionary.  I  have  nowise  been  brought 
to  this  opinion,  as  my  colleague  tliinks,  by  the  fact  that  General  Rolando 
offered  to  purchase  the  concession  for  a  sum  of  35,000  bolivars.  This 
offer  is  but  one  proof  the  more  in  support  of  my  opinion,  but  it  has  not 
been  the  determining  proof.  Doctor  Paúl  concludes,  moreover,  from 
this  amount  that  the  concession  was  not  worth  more.  But  it  is  well  to 
remark  that  the  proposition  of  General  Rolando  was  not  followed  by 
any  result,  Mr.  Fieri  having  without  doubt  judged  the  offer  to  be 
derisory:  it  is  clearly  seen  that  according  to  the  documents  contained 
in  the  dossier  tliis  sum  of  35,000  bolivars  represents  the  income  which 
the  enterprise  of  the  tramway  might  yield  annually. 

The  documents  presented  after  May  12,  1903,  have  no  other  end 
than  to  demonstrate  that  there  exists  in  fact  a  declared  hostility 
against  Mr.  Fieri,  since  peace  has  now  reigned  in  A'enezuela  for  long 
months.     Tliis  unfortunate  concessionary  is  prevented  from  gaining 


200  DOMINIQUE    &    CO.    CASE. 

his  livelihood  b}'  taking  up  again  the  management  of  his  concession. 
They  also  donionstrate  that  the  concession  has  no  such  low  value  as 
my  colleague  would  like  to  have  believed,  since  without  the  j)('rsistent 
ill  will  of  the  municipality  and  of  the  population  Mr.  Fieri  would  find 
an  advantage  in  again  taking  up  the  exploitation  of  his  iine.  What- 
ever Doctor  Paúl  may  say  about  it,  Mr.  Fieri  was  perfectly  right, 
according  to  the  protocol,  in  submitting  these  documents  to  the  um- 
pire. I  searched  in  vain  in  section  2  of  ^ticle  2,  quoted  by  my  col- 
league, the  provision  which  would  prevent  Mr.  Fieri  from  presenting 
the  documents  because  they  are  posterior  to  May  12,  1903.  On  the 
contrary,  I  find  that  section  3  of  the  same  article  formally  authorized 
him  to  do  so. 

I  would  particularly  call  the  attention  of  the  umpire  to  the  enor- 
mous reduction  which  I  have  made  in  my  decision  from  the  amount  of 
indemnity  demanded,  and  I  persist  in  thinking  that  the  sum  of  600,000 
bolivars  is  the  minimum  which  can  be  given  to  Mr.  Fieri  in  compensa- 
tion for  vexations  and  losses  wdiich  he  has  suffered  and  in  exchange  for 
his  concession  and  his  material.  This  reduction  appears  still  more 
considerable  if  we  take  into  account  the  depreciated  currency  with 
which  the  Venezuelan  Government  is  to  pay  its  indemnity.  In  regard 
to  this  I  ought  to  bring  up  the  manner  in  which  my  honorable  colleague 
looks  at  this  public  debt.  I  should  prefer  not  to  be  obliged  to  say 
that  the  Venezuelan  Government  washed  to  profit  from  the  condescen- 
sion, which  alone  among  all  the  foreign  governments  the  French  Gov- 
ernment has  shown  toward  it,  to  allow  it  to  free  itself  from  its  debts  at 
a  reduced  rate  and  not  to  pay  them  integrally.  In  consenting  to  this 
concession  of  not  being  paid  in  gold  the  French  Government  has  in  no 
way  wished  to  place  its  nationals,  the  victims  of  pillage  or  of  denials  of 
justice,  in  a  position  inferior  as  compared  to  the  nationals  of  other 
countries  placed  under  the  same  circumstances;  it  has  wished  only  to 
permit  Venezuela  to  acquit  itself  more  easily  in  giving  to  the  claimants 
in  place  of  gold  these  bonds  redeemable  after  a  long  time. 

Can  we  conclude  from  this  fact  that  it  is  forbidden  the  arbitrators 
in  the  fixing  of  an  indemnity  in  e(|uity  to  take  into  account  the  de|)re- 
ciation  of  the  money  which  is  to  be  given  in  payment?  Can  we  say 
that  this  changes  the  mode  of  payment  established  by  the  |)r()toc()r? 
The  arbitrât  ors  have,  to  the  contrary,  a  strict  duty,  and  they  can  not  fail 
without  Wijunding  e(|ually  (>(|uity  and  good  sense  to  take  account  of  the 
manner  in  which  their  award  will  be  executed  in  such  fashion  that  the 
sum  which  they  have  awarded  shall  be  in  fact  j)aid.  Otherwise  their 
awards  would  be  only  deceptive.  When  my  Government  invested  me 
with  the  duties  of  ¡ubitrator  it  remitted  entirely  to  my  conscience  in 
all  that  which  considers  fundamentally  the  claims  which  I  might  have 
to  examine;  it  has  only  remarked  that  c([uity  conunanded  me  to  take 


OPINION    OF    THE    UMPIRE.  201 

account  in  the  fixing  of  indemnities  of  the  clepreciation  of  the  bonds  of 
the  diplomatic  debt. 

The  protocol  would  in  fact  be  vitiated  if  the  arbitrators  did  not  take 
acct)unt  of  this  article  8,  which  declares  that  the  indenuiitics  will  be 
paid  in  bonds  of  the  diplomatic  debt.  In  reading  this  article  the  arbi- 
trators are  informed  that  the  indemnities  will  be  paid  in  a  certain 
money;  they  ought  to  take  notice  of  this  to  conform  to  the  letter  of  the 
protocol  and  also  to  its  spirit,  which  is  a  spirit  of  equity.  So  I  can 
not  help  express  my  profound  astonishment  to  read  in  the  additional 
memoir  of  my  honorable  colleague  the  phrase  which  begins  thus  :  "The 
French  commissioner  in  his  decision  (Decauville  affair)  concurred  in 
my  opinion,"  etc.  In  the  matter  of  the  Decauville  affair  I  have  given 
no  other  opinion  than  that  wliicli  is  laconically  expressed  in  the  min- 
utes of  the  sitting  of  June  15,  1903,  which  is  as  follows: 

The  examination  of  the  claim  of  Mr.  Decauville  is  then  taken  up.  in  favor  of  which  i.s  recog- 
nized by  connnon  agreement  a  sum  of  41 ,400  bolivars. 

On  the  contrary,  my  colleague  will  kindly  remember  that  I  have  in 
every  affair  which  has  been  submitted  to  us  each  time  demanded  that 
account  must  be  taken  of  the  depreciation  of  the  diplomatic  debt.  And 
at  every  time,  to  arrive  at  an  agreement,  he  has  consented  to  raise 
slightly  the  amount  of  the  indemnit}^,  declaring  that  this  should  not  be 
mentioned  either  in  the  minutes  or  in  the  report  wliich  he  would  pre- 
sent to  his  Government.  I  hold,  in  principle,  that  this  correction  should 
l)e  made,  and  I  should  consider  myself  as  having  failed  in  my  duty  and 
having  been  forgetful  of  equit}^  if  I  had  neglected  a  single  time  to  take 
account  of  the  manner  of  payment  of  indemnities  and  tolerated  that 
the  Venezuelan  Government  should  thus  receive  an  unjust  benefit,  to 
the  detriment  of  the  victims  of  the  abuses  of  power,  of  pillages,  and  of 
denials  of  justice. 

NoRTiiFiELD,  February  11,  1905. 


OPINION   OF   THE    UMPIRE. 

On  the  2d  of  May,  1882,  a  lawful  contract  of  concession  was  made 
by  and  between  the  president  of  the  State  of  Bermúdez,  of  the  United 
States  of  Venezuela,  and  José  Gabriel  Nunez  Romberg,  of  the  city  of 
Cumaná,  of  said  State,  for  the  purpose  of  promoting  and  encouraging 
the  means  of  comnmnication  in  that  section,  which  contract,  among 
other  things,  provided  that  the  government  of  the  State  granted  per- 
mission to  the  concessionary  to  construct  tramways  or  railways  in  the 
cities  of  Cumaná,  Carúpano,  and  Maturín  of  that  State,  and  also  to 
establish  ways  of  communication  under  the  system  named  between 
different  points  of  the  sections  referred  to,  the  works  to  be  the  property 
of  the  enterprise,  but  with  the  obligation  to  devote  them  to  the  trans- 


202  DOMINKiFK    &    CO.    CASE. 

portation  of  passenfjers  and  mercliandisc  at  prices  lower  tlian  those 
then  existing;  between  those  sections  and  in  those  cities  and  in  accord- 
ance witli  tariffs  to  be  approved  by  the  government  of  the  State  of 
Bermúdez. 

The  concessionary  was  authorized  to  transfer  to  others,  in  whole  or 
in  part,  the  rights  passing  to  him  under  the  contract;  also  to  use  for 
the  railways  aforesaid  the  necessary  streets  or  public  walks,  but  in  a 
way  not  to  cause  injury  or  obstruction  to  traffic.  The  enterprise  was 
exempted  from  all  State  and  national  taxation,  with  the  privilege  of 
obtaining  like  exemption  from  municipal  taxation  through  the  action 
of  the  respective  municipal  councils.  This  concession  was  to  continue 
for  the  term  of  fifty  years,  to  be  reckoned  from  the  date  of  the  inau- 
guration of  the  first  line  of  tramways  or  railways  created  under  tliis 
contract,  and  when  said  fifty  years  had  terminated,  the  enterprise, 
with  all  its  ])roperty,  was  to  pass  to  and  become  the  property  of  the 
State  of  Bermúdez. 

On  the  20th  of  the  same  month  the  enterprise  was  duly  exempted 
from  municipal  taxation  by  the  city  of  Cariipano. 

Thereafter  the  anonymous  company  of  "Tramways  of  Cariipano" 
was  duly  organized,  the  privileges  herein  named  were  duly  ceded  to 
the  said  company,  and  the  enterprise  of  the  tramways  was  inaugu- 
rated and  installed  in  the  city  of  Cariipano. 

At  a  date  not  material  tliis  company,  the  "Tramways  of  Carúpano," 
went  into  liquidation,  and  its  liquidator,  on  the  8th  day  of  ^hly,  lSi)l, 
sold  at  auction  to  Fieri  Dominique  the  said  enterprise,  including  the 
privileges  contained  in  the  concession  aforesaid,  so  far  as  the  same 
referred  to  the  city  of  Carúpano.  The  ])rice  paid  therefor  was  38,500 
bolivars.  It  became  the  property  of  Fieri  Dominique  &  Co.,  the 
other  member  being  the  house  of  Franchessi  &  Co.,  of  the  city  of 
Carúpano,  Fieri's  interest  in  the  company  being  much  the  larger  part. 

Under  the  management  of  Fieri  Dominique  &  Co.  the  enterprise  was 
extended  and  enlarged,  and  for  some  four  years  proved  quite  successful. 
The  income  for  the  year  1891-92  was  30,232  bolivars,  ¡ind  there  was  a 
steady  increase  to  1894-95,  when  it  had  reached  47,200  bolivars. 

It  was  in  the  year  1895  that  difficulties  began," culminating  in  the 
very  serious  affair  of  June  21,  1895,  which  continued  through  the  inter- 
vening years  up  to  the  sitting  of  this  mixed  connnission  in  Caracas  in 
1903,  of  a  degree  more  or  less  troublesome  each  year,  to  the  great  det- 
riment and  loss  of  the  company. 

Before  the  sitting  of  this  mixed  connnission  at  Caracas  in  1903 
Fieri  Dominique  had  become  the  sole  owner  of  the  tramways  and  of 
the  cijncession,  paying  for  the  share  of  Franchessi  it  Co.  the  sum  of 
24,000  bolivars. 

The  claim  of  A.  L.  Nasica  was  dismissed  by  (he  lionoiable  eomniis- 
sioners  of  France  and  of  Venezuela  at  their  sitting  in  Caracas,  and 


OPINION   OF  thí:   umpikk.  203 

there  was  reserved  for  tlie  umpire  only  the  (  laiiii  oi"  l^ieri  Dominique 
for  liimself  and  for  Fieri  Dominique  &  Co.,  he  beinji  the  only  person 
interested  at  the  time  this  claim  was  presented  Ijefore  the  mixed  com- 
mission and  the  only  person  interested  at  the  present  time  in  the  claim. 
The  award  is  to  be  for  his  sole  benefit. 

The  nationality  of  the  claimant  is  unquestionably  French,  and  there 
is  a  tliiference  of  opinion  between  the  honoral)le  commissioners  only 
as  to  the  amount  wliich  should  be  awarded  the  claimant  for  the  dam- 
ao;es  and  indenniities  to  which  he  is  entitled. 

The  {io;o:reo;ate  claim  submitted  l)y  Fieri  Dominique  in  Ids  own 
behalf  and  as  the  successor  of  Fieri  Dominique  &  Co.  is  4,010,400 
francs,  coverinti:  injuries  ;,l]eo;ed  to  have  been  committed  on  his  person 
and  ])ro])erty  commencint;  June  21,  1895,  and  continuing  from  time  to 
time  u])  to  the  conclusion  of  ])eace  in  1903.  After  submitting;  this 
claim,  and  while  the  mixed  commission  was  sittinji  at  Caracas  in  1903, 
Fieri  Dominique  appeared  before  the  commission  and  suggested  and 
consented  that  the  award  be  made  on  the  basis  that  he  surrender  the 
enterprise,  including  all  the  privileges  of  the  concession,  to  the  munici- 
pal council  of  Carúp-ino. 

When  the  case  came  on  for  hearing  before  the  honorable  mixed 
commission  it  was  the  opinion  of  the  honorable  commissioner  for 
Venezuela  that  the  sum  of  20,000  francs  was  a  sufficient  indemnity  for 
the  damages  suft'ered  in  the  person  and  in  the  property  of  the  claimant 
on  account  of  the  events  of  June  21,  1895,  and  those  which  are  prior  or 
subsequent,  but  immediately  connected  therewith  or  naturally  flowing 
into  or  therefrom.  For  so  much  of  the  damages  suffered  by  the  claim- 
ant during  the  revolution  of  1901-1903  as  he  regarded  to  be  properly 
chargeable  to  the  respondent  Government  and  for  the  enterprise  itself, 
including  the  privileges  of  the  concession,  he  allowed  the  sum  of 
150,000  francs,  making  in  all  the  sum  of  170,000  francs.  He  finds  no 
occasion  to  allow  any  indenuiity  for  the  action  of  the  customs  author- 
ities at  Carúpano  and  later  on  for  the  action  of  the  city  council  in  pro- 
hibiting and  preventing  the  carrying  on  of  the  tramway  freight  traffic, 
for  the  forced  mterruption  by  the  municipal  council  of  Carúpano  of  the 
entire  traffic  for  a  period  of  three  months  in  1896  during  the  installa- 
tion of  the  aqueduct  system  in  that  city;  for  the  defects  and  faidts  of 
certain  portions  of  the  streets  on  wliich  was  laid  the  tramway  of  the 
claimant  through  the  inefficient  use  and  management  of  the  same  by 
said  aqueduct  company  while  making  its  house  connections,  whereby 
was  ruined  one  of  the  horses  of  the  tramway  system  belonging  to  the 
claimant;  for  the  forcible  suspension  of  the  passenger  traffic  by  order 
of  the  municipal  council  at  another  time;  for  the  arrest  and  imprison- 
ment for  twenty-four  hours  of  the  claimant,  without  warrant  or  any 
subsequent  charge  or  trial,  on  the  oral  order  only  of  the  civil  chief  of 
the  district  of  Bermúdez;  for  the  delay  and  fmal  neglect  of  the  munici- 


204  DOMINIQUE    &    CO,   CASE. 

pality  of  Carupano  to  rebiiiltl  a  ])ri(lge  carried  away  by  a  freshet,  upon 
which  rightftill}'  rested  the  railway  of  the  claimant,  inducing  serious 
loss  in  receipts  tb.roiigli  inability  to  conduct  the  enterprise  and  entail- 
ing upon  the  claimant  the  expense  of  rel)uil(ling  the  bridge;  or  for  tlie 
losses  resulting,  as  claimed,  in  the  allege<l  compulsors'  sale  l)y  the 
claimant  of  his  twelve  houses  at  great  sacrifice. 

It  was  the  opinion  of  the  honorable  commissioner  for  France  that 
the  claim  of  4,010,400  francs  ought  to  be  reducetl  to  600,000  francs, 
which  includes  the  compensation  to  be  paid  the  claimant  for  the 
enterprise  of  the  tramways,  its  privileges  and  franchises.  He  consid- 
ers this  sum  to  be  no  more  than  just  for  all  the  losses  suifered  by  the 
claimant  for  which  he  holds  the  respondent  Government  lial)le.  He 
especially  urges  the  allowance  of  this  sum,  because  the  payment  is  to 
be  made  not  in  gold  but  in  bonds  of  diplomatic  debt  at  3  per  cent, 
which  manner  of  payment  he  regards  as  a  more  favorable  pr()])osition 
to  the  respondent  Government  than  that  made  by  any  other  clainuuit 
Government,  and  he  is  therefore  of  the  opinion  that  in  making  the 
award  the  reduced  market  value  of  these  diplomatic  debts  shoidd  be 
met  by  an  award  sufficiently  enhanced  to  meet  the  (;eficit.  He  is  also 
of  the  opinion  that  the  vexations,  difficulties,  and  injuries  brought 
upon  the  claimant  by  the  officers  of  the  nation,  state,  or  munici])aHty, 
or  suffered  by  them  to  be  brought  U])on  liim,  without  rebuke  or  attempt 
at  prevention  were  the  result  in  part  of  a  prejudice  on  the  part  of  the 
nationals  against  all  foreigners,  and  especially  against  those  of  French 
citizenship,  and  also  in  part  were  a  result  of  a  studied  attempt  of  the 
President  of  the  State  of  Bermúdez  and  of  certain  officers  of  the  city 
of  Carupano  to  compel  an  abandonment  of  the  enterprise  by  the 
claimant  to  them.  He  does  not,  however,  claim  that  there  should  be 
any  punitive  proposition  in  the  award  to  be  rnade,  but  that  it  should 
contain  simply  the  material  damage  which,  in  his  judgment,  the 
claimant  has  suffered  if  he  now  relinquishes  the  property  and  ])rivi- 
leges  of  the  concession  to  the  municipality  of  Carupano. 

The  honorable  commissioners  having  disagree!  in  the  manner  above 
stated,  ])y  their  joint  action  the  claim  comes  to  the  umpire  for  his 
decision  and  aw^ard. 

He  finds  himself  greatly  indebted  to  both  of  the  honorable  couimis- 
sioners  for  the  care  and  skill  with  which  they  have  presented  their 
respective  opinions,  shedding  much  light  u])oii  the  (juestions  at  issue 
and  greatly  aiding  the  umpire  in  his  efforts  to  (U'tei'mine  the  e(|uities 
of  the  case. 

After  a  careful  study  of  these  respective  opinions  and  of  the  facts 
involved  the  umpire  finds  hims(»If  com])elled  to  hold  (.  )  that  the  inter- 
ference of  the  chief  of  the  custom-house  with  the  eiiter|)rise  of  the  tram- 
ways, and  especially  in  the  |);irt  covered  by  his  order  to  the  claimant 
that  he  desist  from  idl  I'reight  trans|)ortiitiou,  were  acts  w  holly  unwar- 


OPITínON    OF    THE    UMPIRE.  205 

ranted,  in  direct  antagonism  to  the  clear  right  of  the  concessionary, 
and  that  this  interference  resulted  in  very  serious  damage  to  the  claim- 
ant; (b)  that  the  order  of  the  municipal  council  to  the  same  effect, 
made  in  January,  1897,  was  without  right,  very  unjust,  strictly 
against  the  terms  of  the  concession,  and  resiüted  in  S(^rious  loss  and 
damage  to  the  claimant;  (c)  that  the  suspension  of  the  tr.nuway 
service  by  the  munici]):il  council  at  the  request  of  the  aqueduct  com- 
pany for  the  installation  of  its  ])ipe  line  was  within  the  power  of  the 
munici])iil  council  to  be  followed  by  a  suilicient  indemnity  to  the  claim- 
ant for  the  losses  sustained  by  him  in  the  interest  of  the  aqueduct  com- 
pany, and  that  this  indemnity  is  primarily  due  from  the  municip.-.lity  to 
the  claimant,  since  the  aqueduct  company  sought  the  intervention  of 
the  municipality.  The  orders  to  suspend  the  tramway  traffic  came 
from  the  municipality.  It  was  the  order  of  the  municipality  which  was 
obeyed,  and  it  is  therefore  to  the  municipality  that  the  claimant  may 
properly  look  for  his  compensation.  Whether  the  city  did  or  did  not 
obtain  indemnity  from  the  aqueduct  company  in  order  to  meet  this 
proper  claim  of  Fieri  Dominque  &  Co.  is  a  matter  not  important  to 
this  inquiry,  since  it  can  not  affect  the  claimant's  right  in  the  premises; 
(d)  that  the  defects  and  faults  of  the  street  caused  through  the  action 
of  the  aqueduct  company  in  making  its  house  connections  with  the 
main  line  were  properl}^  chargeable  to  the  municipality  as  the  party 
primarily  liable  for  the  injuries  which  might  result  therefrom  to  the 
lawful  users  of  the  street,  it  being  borne  in  mind  that  the  traffic  of  the 
tramways  had  been  resumed  on  form::l  notice  from  the  city  authorities 
that  the  conditions  would  permit  its  resumption;  (e)  the  arrest  and 
imprisonment  of  the  cl  .imant,  on  the  8th  day  of  October,  1896,  on  the 
oral  order  of  the  civil  chief  without  warrant,  his  detention  for  twenty- 
four  hours  in  prison,  and  his  subsequent  discharge  on  payment  of  the 
jail  fees  without  intervention  of  a  court  or  tribunal  of  any  character  is 
a  serious  assault  upon  the  liberty  of  the  individual  and  the  sacredness 
of  his  person,  is  wholly  unjustiafible,  and  is  the  proper  subject  of 
indemnity;  (f)  the  staying  of  the  traffic  of  the  tramways  by  the  order 
of  the  municipal  council  as  it  occurred  on  June  14,  1896,  can  onl}^  be 
justified  as  a  matter  of  municipal  right  for  the  public  good  and  can 
only  be  met  properly  by  a  charge  upon  the  ])ublic  to  compensate  the 
individual  for  his  sacrifice  to  the  public  interests;  (g)  the  allowance 
made  by  the  honorable  commissioner  for  Venezuela  of  20,000  francs 
for  the  incidents  of  Jvme  21,  1895,  and  the  injuries  and  damages  which 
are  the  approximate  results  or  a.ntecedents  of  those  incidents  in  the 
judgment  of  the  umpire  is  a  sufficient  sum  to  be  allowed,  and  in  the 
judgment  of  the  umpire  covers  such  damages  as  accrued  because  of  the 
interference  of  the  cliief  of  customs  with  the  tramway  service;  but 
there  should  be  added  thereto  interest  at  the  rate  of  3  per  cent  from 


206  D(ÍMI"N"IQÜE    &    CO.   CASE. 

Juno  21,  1896,  at  whicli  time  it  is  certain  that  the  respondent  Govern- 
ment had  due  notice  of  those  incidents  and  of  the  justice  of  this  claim; 
(li)  tlie  sum  set  by  tlie  lionorable  commissioner  of  Venezuehi  of  150,000 
francs  in  the  ju(l<j:ment  of  the  umpire  is  am])le  to  cover  tlie  revohi- 
tionary  incidents  of  1901-1903  forwliichthe  respondent  Government 
may  be  held  Hable,  and,  in  addition,  for  the  ])urc]iaso  price  of  the 
tramway  enterprise  and  the  priviletios  of  the  concession;  but  it  is  equit- 
able to  relate  back  this  purchase  to  the  time  when  this  property  was 
taken  l)y  the  Government  for  barrica<k\s  and  liospitals,  wliicli  the 
um|)ire  assumes  to  be  January  1,  1902,  and  interest  should  be  allowed 
on  the  sum  of  150,000  francs  from  that  date  to  the  31st  day  of  July, 
1905,  the  anticipated  conclusion  of  this  arl)itration:  (i)  there  can  be  no 
allowance  for  any  losses  accruing  to  the  claimant  in  the  sale  of  liis 
houses,  such  losses  not  being  the  direct  and  approximate  result  of  any 
cavise  for  whicli  the  respondent  Government  has  responsibility,  and  it 
is  only  for  such  residts  that  indemnity  can  be  awarded. 

Concerning  the  responsibility  of  the  national  Government  for  the 
acts  and  neglects  of  the  State  of  Bermudez  and  the  mimici])ality  of 
Carúpano,  the  umpire  holds  here,  as  he  did  in  the  claim  of  Davey,  in  the 
British-Venezuelan  mixed  commission  of  1903,  found  in  Ralston  and 
Doyle's  Venezuelan  Arbitrations,  page  410. 

Before  coming  to  his  decision  in. that  case  the  um])ire  gave  much 
time  and  thought  to  this  question  of  national  responsibility,  and  his 
opinion  there  given  is  the  result.  Further  study  and  reflection  adds  to 
his  conviction  that  his  position  then  taken  was  tenable,  just,  and  neces- 
sary. He  respectfully  refers  the  honorable  commissioners  to  the 
opinion  above  cited  for  an  elucidation  of  his  views  on  that  subject. 
He  would  also  cite  the  opinion  of  Paúl,  commissioner  in  the  French- 
Venezuelan  commission  of  1902,  in  the  claim  of  Battistini,"  Id.  503,  as 
bearing  upon  this  question  of  national  liability  for  State  indebtedness; 
the  opinion  of  Duffield,  umpire  in  the  German-Venezuelan  commission 
of  1903,  case  of  Beckman  &  Co.,  Id.  598;  also  the  o])ini()n  of  Bunch, 
umpire  in  the  Montijo  case,  Moore's  Arb.  1421-1447. 

It  is  the  opinion  of  the  umpire,  however,  that  the  decision  in  this 
case  does  not  rest  ii])on  the  ordinary  postulates.  It  is  hen»  ))roposed 
that  the  claimant  abandon,  transfer,  and  make  over  to  the  municipal- 
ity of  Carúpano  his  enterprise  of  the  (raniway,  his  concessions  and 
privileges  in  consideration  of  payment  to  be  n^ade  therefor  and  to  be 
included  in  th(>  award.  To  ])ut  iho  nuini(i|)ality  of  Carúpano  in  pos- 
session of  this  enterprise  as  sole  owner  ihci'eof  to  the  entire»  (>.\(  lusion 
of  the  claimant  while  the  municipality  is  uiKjuest ioiuibly  tlic  (h'htor 
of  the  claimant  for  its  acts  ¡md  neglects  in  coimcction  with  t!iis  enter- 
prise would  l)e  so  manifesth'  unjust  and  ineipiitable  as  not  to  permit  a 

o  Page  459,  post. 


OPINION    OF    THE    UMPIRE.  207 

moment's  favorable  consideration.  Whatever  may  be  the  usual  rela- 
tion of  the  nation  to  and  with  its  municipal  subordinate  divisions,  it 
is  certain  that  in  this  case  it  can  and  will  bo  so  related  to  the  niuniri- 
pality  of  C'arilpano  as  to  exact  and  re<[uire  full  repayment  to  itself  for 
all  it  shall  undertake  and  expend  in  behalf  of  that  municipality  in  con- 
nection with  this  enterprise  of  the  tramways,  ^^^latever  hesitancy, 
if  any,  there  mif^ht  be  ordinarily  in  makin<î  such  acts  and  nef;locts  of 
the  municipality  a  matter  of  international  award  is  dissipated  by  the 
peculiar  facts  incident  to  this  claim,  as  above  stated. 

So  nnich  of  the  award  as  corrects  the  wront^  done  the  claimant  by 
his  arbitrary  arrest  and  imprisonment  stands  solely  upon  the  recog- 
nized and  rightful  responsibility  of  the  nation,  internationally,  for  the 
unlawful  and  injurious  acts  of  its  subordinate  officials  and  is  on  all 
fours  with  the  case  of  Davey  first  above  cited. 

Concernino:  the  alleviation  of  prejudice  on  the  part  of  the  nationals 
of  the  respondent  Government  toward  foreigners,  and  especiallv  the 
French,  and  also  the  allegation  that  there  was  a  studied  attempt  of 
the  President  of  the  State  of  Bermiidez  and  of  certain  officers  of  the  city 
of  Cari'ipant)  to  compel  abandonment  of  his  tramway  enterprise  by  the 
claimant,  it  is  sufficient  to  say  that  these  allegations  are  not  material 
to  the  inquiry,  since  there  is  no  claim  for  punitive  or  exemplary  dam- 
ages and  since  all  essential  facts  bearing  upon  the  cjuestion  of  the 
actual  damages  suffered  are  found  without  involving  tlie  consideration 
of  these  questions. 

The  honorable  commissioner  for  France  again  urges  upon  the  umpire 
the  proprietj'  and  duty  of  increasing  the  sum  which  he  otherwise  would 
award  the  claimant  by  an  amount  equal  to  the  diminished  value  of  the 
diplomatic  debt  of  3  per  cent  as  compared  with  gold,  and  in  this  opin- 
ion he  gives  especial  prominence  to  the  claimed  inequality  of  the  plan 
accepted  by  the  high  contracting  parties  in  the  protocol  providing  for 
this  commission  with  the  plan  ado])ted  by  the  claimant  Governments 
and  the  respondent  Government  m  the  several  protocols  of  1903.  This 
particidar  reason  was  not  passed  upon  by  the  umpire  in  his  opinion 
given  in  the  claim  of  Jules  Brun,<^if  it  were,  in  fact,  then  pressed  upon 
his  consideration  by  the  honorable  commissioner  for  the  claimant 
Government. 

In  the  motion  for  allowance  of  interest  on  awards  from  their  date 
until  payment,  which  was  made  in  the  British-"WMiezuelan  Commission 
of  1903  and  wliich  on  the  disagreement  of  the  honorable  commissioners 
came  to  the  umpire  for  his  decision,  a  careful  and  painstaking  study 
was  made  by  him  of  the  basic  principles  underlAnng  this  question,  and 
while  the  exact  proposition  now  before  him  is  not  identical  with  that, 
yet  the  principles  which  govern  him  in  his  decision  are  in  large  part 
the  same. 

a  Page  5. 


208  DOMINIQUE    &    CO.   CASE. 

Here,  as  there,  the  warrant  for  such  action  must  be  found,  if  found, 
in  the  protocol  which  (  onstitutes  this  tribunal  and  defines  its  duties, 
its  powers,  and  its  limitations.  There,  as  here,  the  protocol  determined 
the  manner  and  means  of  payment,  and  over  that  matter  «rave  the 
tril)unal  no  jurisdiction.  llore,  as  there,  the  functions  of  this  tribunal 
end  when  it  has  determined  the  damaojes  sustained  by  the  claimant. 
The  reasons  stated  })v  the  umpire  in  that  case  are  applicable  here,  and 
the  attention  of  the  honorable  commissioners  is  res})ectñilly  invited 
to  it  as  found  in  Ralston  and  Doyle's  Venezuelan  Arbitrations  of  1903, 
pm^o  413.  It  will  be  observed  that  there,  as  here,  the  allefjed  f^round 
for  the  requested  award  was  a  claimed  equit3\  The  lono;  delay  in 
payment  which  seemed  probable  was  urged  as  the  reason  for  the 
allowance  of  interest  ;  here,  by  the  terms  of  the  treaty,  the  award  draws 
interest,  l)ut  its  value  in  the  market  is  below  par,  and  hence  the  opinion 
of  the  honorable  commissioner  for  France  that  the  umpire  should 
increase  the  sum  awarded  to  meet  this  lessened  value.  It  will  be 
noted  especially  that  the  very  terms  of  pa^mient  provided  for  in  the 
protocols  of  1903,  and  which  are  considered  by  the  honorable  com- 
missioner of  the  claimant  Government  to  be  so  much  more  favorable 
for  the  claimants  than  the  plan  evoked  by  the  convention  controlling 
this  tribunal  as  to  work  injustice  and  inecjuit}^  to  the  claimants 
before  this  commission  by  the  inequality  which  it  produces,  were 
regarded  by  the  British  Government  so  onerous  as  to  recjuire  the  effi- 
cient aid  of  the  umpire  to  maintain  justice  and  ec^uity  through  an 
allowance  of  interest.  In  the  one  case  a  certain  method  of  assured 
pa3nnent  without  interest  was  devised  and  preferred  by  the  high  con- 
tracting parties;  in  the  other  the  high  contracting  parties  preferred  a 
certain  method  of  payment  with  interest  in  bonds  circulating  in  the 
markets  of  the  world.  In  the  one  case  the  award  is  not  rated  at  par 
berause  of  the  necessary  delay  attached  to  its  payment;  in  the  other 
it  is  not  rated  at  par  for  reasons  satisfactory  to  the  world  of  finance. 

The  inequality  produced  by  the  two  methods  of  payment  is  there- 
fore not  very  striking,  nor  is  the  inequity  resulting  therefrom  very  pro- 
nounced, and  taken  together  they  are  insufficient  to  move  the  umpire 
to  accord  with  the  opinion  of  the  honorable  commissioner  for  France, 
even  if  the  umpire  were  competent  under  the  terms  of  the  protocol  to 
make  such  an  award,  and  concerning  that  (piostion  the  review  which 
he  has  just  made  confirms  his  judgment  as  expressed  by  him  in  the 
claim  of  Jules  Brun. 

In  order  to  compensate  the  claimant  for  his  material  damage  suf- 
fered in  all  of  the  wa}s  herein  referred  to,  including  interest  at  3  })er 
cent  where  interest  is  proper,  there  should  be  added  to  170,000  francs 
allowed  by  the  honorable  conunissioner  for  Venezuela  the  .'^um  of 
180,000  francs,  which  makes  in  all  the  sum  of  300,000  francs,  for 
wliich  amount  the  award  will  be  drawn. 


ADDENDUM.  209 

ADDENDUM. 

After  this  opinion  was  ^^Titten,  but  before  the  award  had  been  made, 
it  was  brought  to  the  attention  of  the  umpire  that  coniHtions  had 
materially  changed  in  Carúpano  since  the  sitting  of  the  honorable 
commission  at  Caracas.  At  the  time  named  the  revolution  was  still 
rampant  in  that  part  of  the  respondent  Government,  with  the  latter  in 
possession  of  Carúpano,  holding  it  under  martial  law,  and  with  its 
troops  occupying  for  military  purposes  the  station  of  the  tramways 
and  for  barricades  portions  of  the  tramway  itself.  The  Government 
of  Venezuela  was  then,  in  fact,  in  occupancy  of  the  tramway  system  to 
the  exclusion  of  the  owner.  There  seemed  to  both  commissioners  no 
better  way  to  dispose  of  the  claim  than,  on  the  one  hand,  finally  to  sur- 
render what  was  lost  and,  on  the  other,  fully  to  accept  what  had  been 
taken.  They  did  not  agree  upon  the  terms,  however,  and  the  claim 
had  to  come  before  the  umpire. 

It  transpired  in  the  meanwhile  that  the  revolution  was  (juelled, 
peace  was  restored,  and  the  claimant  had  entered  into  undisturbed 
possession  of  his  franchise  and  such  of  his  properties  as  he  chose  to 
make  use  of;  had  occiipied  the  station  house,  regained  a  part  of  the 
movable  property  of  the  enterprise,  and  had  begun  again  its  exploita- 
tion. By  the  terms  of  the  contract  the  tramway  system  was  eventu- 
ally to  become  the  property  of  the  municipality  and  was  at  all  times 
under  its  civil  control.  Hence  it  had  seemed  to  the  honorable  com- 
missioner for  Venezuela  very  unwise  and,  in  a  sense,  not  within  its 
competency,  for  the  respondent  Government  to  interfere  with  either  the 
ownership  of  the  claimant  or  the  present  civic  control  and  the  ultimate 
municipal  ownership  of  the  city  of  Carúpano,  and  for  these  reasons  he 
declined  to  accede  to  the  proposition  of  abandonment  on  the  part  of  the 
claimant  and  on  the  part  of  the  respondent  Government  of  acceptance 
and  payment  of  his  franchises  and  properties.  The  whole  question 
was  thoroughly  and  ably  presented  to  the  umpire  at  a  sitting  of  this 
honorable  commission,  held  on  the  12tli  da}'  of  August,  instant,  the 
honorable  commissioner  for  France  believing  and  urging  that  the  plan 
adopted  at  Caracas  was  the  better  and  should  be  adhered  to  in  the  dis- 
position of  the  claim.  The  honorable  commissioner  for  Venezuela 
held  and  insisted  that  the  arbitral  tribunal  constituted  at  Paris  Feb- 
ruary 19,  1902,  had  no  authority  to  do  other  than  to  award  indemni- 
ties for  damages  suñered  by  Frenchmen  in  Venezuela  and  that  it 
could  not  compel  abandonment  of  property  by  its  owner  or  acceptance 
of  it  by  the  respondent  Government.  To  this  position  the  honorable 
commissioner  for  France  demurred  and  urged  that  it  had  authority  to 
so  award. 

To-day,  having  careñdly  considered  the  ({uestions  involved  and 
having  reflected  upon  the  opinions  respectivel}'  held  and  ably  ileclared 
to  him  by  his  able  and  learned  associates,  the  umpire  has  concluded, 
S.  Doc.  533,  59—1 14 


'210  Do:MTxrQUK  «fe  co.  case. 

and  hence  holds,  that  the  safe,  sane,  and  wise  course  for  this  tril)unal 
to  pursue  is  to  pay  scrupulous  regard  to  the  terms  of  the  protocol 
which  constituted  it  and  to  place  the  entire  responsibility  in  that 
behalf  upon  the  high  contracting  powers  which  arranged  and  settled 
those  terms.  He  is  confident  that  the  language  of  that  compact  does 
not  permit  the  use  of  any  such  powers  as  will  be  involved  in  a  com- 
pulsory award  of  the  character*  proposed  by  the  honorable  commis- 
sioner for  France,  holding  that,  in  tliis  respect,  the  claim  under  con- 
sideration is  identical  in  that  regard  with  the  claim  of  the  French 
Company  of  Verezuelan  Railroads,  and  the  reasons  there  given  ^  by  the 
umpire  are  here  referred  to  for  an  elaboration  of  his  opinion.  He 
therefore  decides  that  it  is  only  for  damages  suffereil  in  Venezuela 
that  the  claimant  has  recourse  to  this  tribunal,  and  for  those  the 
umpire  will  award  the  sum  of  300,000  francs. 

NORTHFIELD,  AuÇUSt  14,  1905. 

«Page  367. 


CLAIM    OF   THE   HEIRS    OF   MASSIANI.— No.  6." 


HEAD  NOTES. 

An  indebtedness  of  the  respondent  (tovernnient  to  tlie  late  Tlionias  Massiani  in  his  lifetime 
is  a  part  of  the  patrimony  which  descends  to  his  widow  and  children,  to  he  distril)uted 
in  accordance  with  the  laws  of  Venezuela. 

The  widow  of  Thomas  Massiani  was  born  in  Venezuela,  accjuired  French  nationality  by  the 
laws  of  both  countries  by  her  marriage  to  Thomas  Massiani,  by  the  laws  of  France 
retained  that  nationality  after  his  decease,  but  by  the  laws  of  "Wnezuela  was  restored 
l)y  his  death  to  her  quality  of  a  Venezuelan  citizen. 

During  tlieir  marriage  and  since  his  death  she  has  been  domiciled  in  ^'cnezuel!l.  The  law  of 
her  domicile  prevails  in  this  conflict  and  her  nationality  before  this  tril)unal  is  Vene- 
zuelan. 

The  children  were  all  l)ürn  in  Venezuela  and  it  has  always  been  their  domicile.  While  by  the 
laws  of  France  tiiey  are  Frenchmen,  being  the  children  of  a  Frenchman,  tiiey  are  by  the 
laws  of  Venezuela  citizens  of  that  country.  .\s  in  the  case  of  the  widow,  the  law  of  the 
domicile  prevails,  and  before  this  tribimal  they  are  Venezuelans. 

Thomas  Massiani  deceased  prior  to  the  convention  of  February  19,  19()2;  therefore  neither 
of  tlie  liigh  contracting  parties  could  have  had  liim  in  mind  as  a  possibles  claimant  at  the 
time  of  said  convention. 

His  widow  and  children  being  Venezuelans  in  the  contemplation  of  the  respondent  Govern- 
ment, their  right  to  the  intervention  of  France  was  not  agreed  to  by  Venezuela  in  said 
protocol. 


«EXTRACT   FROM   THE   MINUTES   OF   THE   SITTING   OF   AUGUST   28,  1903. 

The  commission  then  proceeded  to  the  examination  of  the  Massiani  claim. 

Doctor  Paúl  rejects  it,  and  bases  his  opinion  upon  the  following  considerations:  The 
heirs  of  Thomas  Massiani  are  all  Venezuelans  by  Venezuelan  law.  The  mixed  commission 
of  1890  has  airead}' rejected  the  claim  in  question,  and  the  present  commission  would  not  be 
able  to  revise  a  judgment  of  the  former  commission.  Finally,  the  very  documents  upon 
which  the  Massiani  heirs  base  their  right  to  the  payment  of  the  sum  which  they  claim  does 
not  seem  .sufficient  to  prove  the  existence  of  the  debt  in  a  decisive  manner. 

M.  dePeretti  repliesthat  M.  Massiani  (Thomas)  enjoyed  exclusively  French  nationality,  and 
that  his  heirs,  if  they  are  Venezuelans  according  to  Venezuelan  law,  are  considered  as  French- 
men by  French  law;  that  if  the  connnission  of  1890  has  rejected  the  claim  in  c|uestion,  it  is 
because  the  Venezuelan  Government  did  not  give  an  acknowledgment  to  a  document  of 
which  M.  Philippe  Massiani  has  been  able  to  obtain  an  authentic  copy  only  in  1903:  that  the 
present  commission  .seems  to  him  competent  to  revise  a  judgment  of  the  earlier  commission 
if  a  new  fact  has  been  presented,  which  is  the  ca.se  in  the  Ma.ssiani  claim;  finally,  that  the 
credit  seems  well  established  by  the  document  delivered  to  M.  Philippe  Massiani  by  the 
Venezuelan  administrât  ion. 

He  is,  then,  in  favor  of  granting  to  the  Massiani  heirs  a  sum  of  270,813. .'íü  bolivars,  rei)re- 
senting  the  capital  of  the  debt,  and  not  according  inteicst  bcrause  of  tlie  negligence  dui'ing 
long  years  by  the  claimants  in  the  defense  of  their  rights. 

The  arbitrators  not  being  able  to  agree,  the  claim  of  the  Massiani  heirs  will  be  submitted 
to  the  examination  of  the  umpire. 

211 


212  HEIRR    OF    MASSIAXI    CASE. 

The  iudebtednpss  of  Vcnozucla  to  the  estate  of  Thoma.s  Massiani  may  still  remain,  hut  the 
fonim  is  certainly  changed.  The  present  forum  is  the  one  constituted  for  Vene.;uelans. 
This  forum  is  the  result  of  the  selection  of  tlieir  paternal  ancestor  and  their  own  selection 
after  attaining  majority. 

Having  Frencli  paternity,  and  tlierehv  having  French  nationality  in  France,  tliey  needed 
only  to  l)e  domiciled  therein  to  iiave  a  nationality  whidi  all  tlie  world  nuist  maintain  to 
be  French.  They  have  preferred  to  remain  in  Venezuela;  its  laws  and  its  courts  are 
theirs;  these  they  may  invoke;  with  them  they  must  be  content. 

To  be  sovereign  and  independent,  each  country  must  be  master  of  its  internal  policy  and  sub- 
ject neither  to  advice  nor  control  by  any  other  country. 

The  laws  of  Venezuela  concerning  citizenshij)  are  not  peculiar  or  offensive,  but  are  in  accord 
with  the  law  of  nations  in  general. 


OPINION  OF  THE  VENEZUELAN  COMMISSIONER. 

Tills  claim  has  l)eoii  })resentecl  In  the  name  of  Mrs.  Carmen  Silva  de 
Massiani,  widow  of  Tomás  Massiani,  of  Felipe  A.  Massiani,  Ascención 
Massiani  de  Phelan.  Niincia  Massiani  de  Orsini,  Luis  A.  Massiani, 
cliildren  of  Tomás  Massiani,  and  Isabel  Paván  de  Massiani,  acting  in 
behalf  of  her  minor  cliildren,  Antonio  José,  Tomás  María,  Mercedes, 
Luis  Enri(|ue,  Carmen  de  Lourdes,  and  Gloria.  i.ssue  of  her  marriage 
with  Mr.  Antonio  Massiani,  now  deceased,  son  of  Tomás  Mas.siani,  and 
therefore  those  minors  being  grandchildren  of  the  latter. 

The  claim  proceeds  from  debts  which,  the  claimants  sustain,  were 
contracted  by  the  Government  of  Venezuela,  in  favor  of  liini  from 
whom  they  derive  their  rights,  Mr.  Tomás  Massiani,  by  the  years  1864 
to  1869. 

The  documents  ])resented  prove  that  Tomás  ^lassiani  died  in  the 
city  of  Carúpano  on  the  9th  of  October,  1901,  leaving  as  his  law'ful 
heirs  his  wdfe,  Carmen  Silva  de  Massiani,  and  his  children  Felipe  A. 
Massiani,  Antonio  A.  Massiani,  Ascension  Massiani,  Nuncia  Massiani, 
and  Luis  A.  Massiani;  that  these  children  have  married  as  follows: 
Ascension  Massiani  to  a  Mr.  Phelan,  Nuncia  Massiani  to  Agustin 
Orsini,  and  Antonio  J.  Massiani  to  Isabel  Paván,  of  which  latter  mar- 
riage there  arc  under  the  parental  C(mtrol  of  Isabel  Paván  de  Massiani, 
her  husband   l)eing  dead,  six  minor  children. 

From  the  certiiicates  of  birth  presented  of  Mrs.  Carmen  Silva  de 
Massiani,  widow  of  Tomás  Massiani,  and  of  her  children,  Felipe  A. 
Massiani,  Antonio  Jose,  Ascensión,  Nuncia,  and  Luis,  it  appears  that  all 
of  them  are  of  Vene/Aielan  nationality,  they  having  i)een  born  in  the 
city  of  Carúpano,  State  of  Sucre,  Ignited  States  of  Venezuela,  and  that 
the  same  circumstance  exists  respecting  the  minor  children  of  Antonio 
José  Massiani,  represented  by  their  mother,  Isabel  Paván  de  Ma.ssiani. 

With  reference  to  Mrs,  Carmen  Silva  de  Massiani,  while  by  articles  19 
of  the  ^^enezuelan  civil  code  and  12  of  the  French  civil  code  the  woman 
maiTied  to  ji  foreigner  folloAvs  the  condition  of  her  husband,  the  linal 


OPINION    OK    VENEZUELAN    COMMISSIONER.  213 

provision  of  tlie  Venezuelan  civil  codo,  which  establishes  that  that 
change  only  subsists  during  the  marriage,  is  conclusive. 

Mrs.  Carmen  Silva  de  Massiani,  having  become  a  widow,  has  recov- 
ered, according  to  the  Venezuelan  law^,  which  governs  her  personal 
status,  her  Venezuelan  nationality;  and,  even  if  it  might  be  sustained 
that,  according  to  the  French  law,  she  continues  to  be  French,  this 
commission,  in  determining  the  conflict  of  nationality  arising  from  the 
two  laws,  nuist  take  into  consich'ration  the  especial  circumstances  and 
the  facts  showing  the  real  condition  in  wdiich  Mrs.  Carmen  Silva  de 
Massiani  has  maintained  herself  with  reference  to  her  nationality,  as 
well  as  with  respect  to  the  nationality  of  her  children. 

It  is  not  proved,  nor  has  it  been  attempted  to  prove,  that  Mrs.  Silva 
de  Massiani,  after  she  became  a  wádow,  or  her  children  of  full  age,  have 
ever  pretended,  by  acts  proving  such  circumstance,  to  obtain  and  pre- 
serve a  nationality  diflerent  from  that  which  the  ^'enezuelan  law 
attributes  to  them,  under  which  law  they  have  performed  all  the  most 
important  acts  of  life  connected  with  the  i)ersonal  statute,  status  civi- 
tatis,  ami  governed  by  the  especial  laws  of  that  statute,  such  as  those 
relating  to  successions,  inheritances,  guardianships,  and  marriage. 
It  is  not  proved  either  that  the  male  children  of  Tomás  Massiani  have 
rendered  France  the  militar}'  service  obligatory  for  every  Frenchman, 
or  in  any  way  contributed  to  the  satisfaction  of  other  charges  that 
would  procure  the  protection  due  to  those  who  do  not  abstain  in  an 
unjustifiable  way  from  the  compliance  with  their  dut}^  to  their  native 
land. 

On  the  contrary,  all  the  especial  circumstances  and  precedents  con- 
nected with  the  persons  of  the  claimants  show  that  they  have  tluring 
all  their  life  remained  in  the  territory  of  Venezuela;  that  there  they 
have  had  for  three  generations  the  business  and  the  principal  and 
only  seat  of  their  interests,  and  they  have  contracted  in  the  same  teiTÍ- 
tory  marriages  with  persons  of  different  nationalities,  enjoying  under 
the  protection  of  the  Venezuelan  laws  the  security  they  grant  and  the 
services  which  the  authorities  of  their  residences  were  called  upon  to 
render  to  them  in  order  to  safeguard  their  persons  and  interests. 
From  those  facts  it  is  deduced  that  the  permanent  settlement  of  the 
widow  and  children  of  Tomás  Massiani,  in  the  territor}'  of  ^'enezuela, 
of  which  they  are  all  natives,  is  the  result  of  a  reasoned  and  persisting 
will  and  the  manifestation  of  a  free  and  spontaneous  purp(^so  which 
makes  the  law  of  domicile  j)revail  over  any  other  law  when  determining 
the  question  of  nationalitv. 

Mrs.  Carmen  Silva  de  Massiani,  her  children,  who  have  been  born 
and,  one  of  them,  died  in  Venezuela,  and  her  grandcliildren,  all  l)orn 
in  Venezuela,  are  Venezuelans,  not  only  l)y  the  law  of  Venezuela,  but 
in  virtue  of  all  the  especial  personal  circumstances  of  continued  resi- 


214  HEIRS    OF   MASSIANI    CASE. 

deuce,  business  ties  witli  the  Venezuelan  soil,  which   has  t;iven  them 
everything,  inehulino;  their  national  character. 

Tt  is  doubtless  that  when  a  {jroup  of  men  are  considered,  and  the  aptitudes,  liabits,  and 
attributes  of  each  individual  are  studied,  it  is  found  that  eacli  perstjii  pertaining  to  a  group 
poasesses  certain  common  characters  that  are  like  a  common  property  of  all  the  memlxM-s 
belonging  to  the  same  group.  Hence  it  results  that,  if  attention  is  paid  to  the  common 
attributes  pertaining  to  all  tlie  individuals  of  each  group,  it  may  rightly  be  said  that  these 
individuals  belong  to  this  or  that  nation.^ 

In  view  of  the  aforesaid  circumstances,  the  arbitrator  for  Venezuela 
is  of  opinion  that  this  tribunal  has  no  jurisdiction  to  take  cognizance 
of  and  decide  the  claim  in  Cjuestion,  and  that  there  is,  besides,  with 
respect  to  it  a  precedent  that  renders  it  equally  inadmissible. 

Said  precedent  consists  in  the  fact  that  the  same  claim  was  presented 
bv  Tomás  Massiani,  from  whom  the  present  claimants  derive  their 
rights,  against  the  Government  of  Venezuela,  before  the  mixed  com- 
mission sitting  at  Caracas  from  1888  to  1890,  instituted  in  accordance 
with  the  Venezuelan- French  convention  of  1885. 

Tomás  Massiani  claimed  from  the  Government  of  Venezuela,  l)efore 
the  said  commission,  the  sum  of  351 ,449.80  bolivars.  As  appears  from 
the  certificate  issued  by  the  citizen  minister  of  foreign  affairs  on  the 
20th  of  the  present  month,  annexed  to  this  opinion,  the  members  of 
said  commission  in  the  sitting  of  the  7th  of  July.  1890,  gave  the  follow- 
ing award  with  reference  to  the  claim  in  question: 

The  first  part  of  the  claim  of  Mr.  Massiani,  of  which  mention  is  made  in  the  record  of  the 
proceedings  of  the  19th  of  May  of  the  present  year  for  -49,666.84  Ijolivars,  was  accepted  by 
the  commission,  the  (juestion  being  a  credit  already  recognized  by  the  Government  of  \'ene- 
zuela,  and  the  present  commissioner  being  authorized  by  a  note  addres.sed  to  him  by  the 
minister  of  foreign  adairs  on  the  18th  of  July  last,  \o.  643,  to  examine  the  claims  that  b.ad 
been  presented  to  the  commission  of  1879,  and  the  second  part  of  the  same  claim  amounting 
to  301 ,784.96  bolivars  was  disallowed,  because  the  interested  party  did  not  produce  a  suffi- 
cient document  in  support  of  his  claim. 

The  reason  on  which  was  based  the  disallowance  of  the  claim,  in  the 
part  above  determined,  which  is  tantamount  to  its  having  been  denied 
or  rejected,  was,  as  expressed  in  the  same  award,  the  want  of  sullicient 
proof  to  justify  it. 

The  successors  to  Tomás  Massiani  now  i^retend  that  this  connnission 
should  examine  and  decide  again  what  was  already  the  object  of  the 
decision  of  the  mixed  commission  of  1888  to  1890,  and  base  their  jire- 
tention  on  a  certificate  from  the  centralization  board  of  the  geneial 


a  687.  II  est  hors  de  doute,  lorsque  l'on  considère  une  réunion  d'hommes  et  qu'on  étudie 
les  aptitudes,  les  habitudes  et  les  attributs  de  chaque  individu,  on  trouve  que  chaque  per- 
sonne, que  appartient  à  cette  réunion,  u  certains  caract^res  individuels  et  certains  carac- 
tères communs,  qui  sont  comme  la  propriété  conunune  et  de  tous  les  membres  qui 
appartieiment  au  même  groupe.  De  là  il  résulte  que,  si  on  porte  son  attention  sur  les 
attributs  communs  qui  sont  propres  à  tous  les  individus  de  cluique  groupe,  ou  peut  dire 
avec  rai.son  que  ces  individus  appartiennent  à  telle  ou  telle  nation.  (Kiore,  Nouveau 
Droit  Intematiomil  Puljlic,  sec.  687.) 


OPINION    OF    VENEZUELAN    COMMISSIONER.  215 

auditor's  office,  bearing  the  date  of  the  12th  of  August,  1890,  posterior, 
as  may  be  seen,  to  the  date  of  the  award  of  the  mixed  commission;  in 
which  certificate  the  movement  in  the  books  of  the  custom-house  of 
Carúpano  is  partly  detailed,  and  ending  by  a  note  signed  by  the  auditor- 
general,  in  which  it  is  declared  that,  according  to  said  books,  Tomás 
Massiani  appeared  to  be  the  creditor  of  the  Government  of  Venezuela 
up  to  the  23d  of  June,  1890,  for  the  sum  of  270,813.56  bolivars. 

The  claimants  give  that  certificate  the  force  of  a  decisive  document 
in  favor  of  the  creditor,  and  sustaining  that  that  document  was  retained 
by  the  debtor,  or  that,  at  least,  this  prevented  its  presentation  in  due 
time  before  the  award  of  the  mixed  commission  of  1890,  they  pretend 
that  the  commission,  in  virtue  of  those  reasons,  should  invalidate  the 
award  of  the  preceding  commission  of  the  7th  of  July,  1890,  and  again 
decide  in  favor  of  their  claims. 

In  law  the  invalidation  of  a  sentence  is  admissible  when  founded 
on  several  causes,  as:  The  omission  of  the  summons  for  the  reply  of 
the  defendant  ;  the  falsity  of  the  ilocument  in  virtue  of  which  the  sen- 
tence was  rendered,  and  the  retention  in  the  possession  of  the  adverse 
party  of  a  decisive  document  in  favor  of  the  action  or  the  exception  of 
the  claimant,  or  any  act  on  the  part  of  the  adverse  party  preventing 
the  presentation  in  due  time  of  said  decisive  document. 

To  admit  that  this  commission  is  called  upon  to  decide  the  invali- 
dation of  the  sentence  rendered  by  the  preceding  commission  it  would 
first  be  necessar}^,  as  provided  b}^  the  Venezuelan  Civil  Code  of  Pro- 
cedure, w^hich  establishes  that  the  suit  for  invalidation  must  be 
brought  before  the  same  tribunal  that  rendered  the  sentence,  to  declare 
that  this  commission  is  the  same  commission  sitting  in  Caracas  in  1888 
in  virtue  of  the  Venezuelan-French  convention  of  1885. 

This  similitude  or  identity  can  not  be  deduced  onh^  from  the  inter- 
national character  of  both  commissions,  but  would  require  to  be  the 
result  of  an  express  convention  of  the  two  high  contracting  parties 
vesting  this  commission  with  the  power  of  revising  and  finding  the 
decisions  of  the  preceding  commission  in  the  same  way  as  the  iiational 
law  gives  its  ordinary  tribunals  the  express  power  of  invalidating  their 
own  sentences  in  such  cases  as  the  law  determines. 

No  suit  for  invalidation  has  either  been  brought  before  this  com- 
mission, in  which  the  debate  should  be  confined  to  examine  the  deci- 
sive force  of  the  document  presented  in  favor  of  the  creditor,  whether 
it  was  or  not  in  the  possession  of  the  debtor  when  the  sentence  was 
rendered,  or  whether  said  debtor  did  or  did  not  perform  any  acts  that 
might  prevent  the  presentation  thereof.  The  commissioner  for  Vene- 
zuela does  not  consider  that  he  nuist  give  an  especial  decision  on  these 
points  which  constitute  a  suit  for  the  invalidation  of  a  sentence  pre- 
viously rendered,  because  such  has  not  been  the  subject  of  examination 
by  this  commission;  but  he  is  of  opinion  that  the  document  j)resented 


216  HEIRS    OF    MASSIANI    CASE. 

is  destitute  of  decisive  force  in  favor  of  the  creditor,  for  it  is  nothing 
but  a  certificate  issued  by  the  general  auditor's  office  to  the  effect  that 
according  to  the  books  of  the  custoni-liouso  at  Carúpano  it  appeared 
that  on  the  23d  of  June,  1869,  tliere  was  a  balance  in  favor  of  Tomás 
Massiani,  without  determining  in  a  decisive  manner  that  he  was  cred- 
itor for  that  sum  on  the  date  of  the  certificate,  the  I'ith  of  August,  1890, 
or  twenty-two  years  thereafter.  No  data  have  been  furnished  with 
reference  to  the  fluctuation  of  that  account  in  the  intervening  twenty- 
two  years,  during  which  Mr.  T.  Massiani  continued  liis  importations 
through  the  custom-house  at  Carúpano,  and  transfers  were  made 
decreed  by  special  laws  for  the  conversion  of  the  balances  against  the 
States  into  bonds  of  national  debt. 

The  apparent  abandonment  in  which,  according  to  the  pretention 
itself  of  Mr.  Massiani,  his  credit  was  left  during  twenty-one  years  with- 
out any  explanation;  the  lack  of  steps  to  obtain  its  payment  or  at 
least  to  procure  proofs  that  miglit  safeguard  his  rights,  constitute  so 
strong  a  presumption  against  the  subsistence  of  that  credit  that  it 
suffices  to  strengthen  the  opinion  expressed  that  the  certificate  pro- 
duced is  an  inefficient  document  and  is  destitute  of  the  decisive  force 
that  the  law  and  common  sense  re(|uire  for  the  invalidation  of  a  sen- 
tence that  was  rendered,  because  the  claimant  did  not  produce  a  suffi- 
cient document  in  support  of  Ins  claim. 

The  decisions  of  tribunals  of  the  nature  of  these  commissions  are 
conclusive  and  final,  and  such  tril)unals  are  constituted  in  order  i)re- 
cisel}^  that  their  decisions  have  that  force  with  the  purpose  of  putting 
an  end  to  long-pending  and  vexing  questions  which  generally  disturb 
the  progress  of  international  relations. 

When  a  court  of  arbitration  rejei  ts,  for  lack  of  j)roof8,  a  claim,  or 
when  it  admits  it  in  ¡ts  entirety  or  in  part,  its  decision  is  a  law  which 
binds  t'  e  two  contracting  nations. 

In  the  same  case  of  the  (  laim  of  Tomás  Massiani,  that  of  being 
admitted  in  part  and  in  part  rejected,  were  many  others  submitted 
to  the  examination  of  the  commission  of  1888  to  1890,  and  that  com- 
mission was  given  the  power  of  fixing  or  appreciating  according  only 
to  the  documents  produced  in  each  case,  the  just  value  of  each  recla- 
mation. 

In  exec  ution  of  that  ])ower  it  examined  and  decided  more  than  one 
hundred  and  forty  ■  laims,  rejecting  many  of  tl.eni  for  lack  of  proofs, 
so  that  of  the  sum  of  1 1 ,284,582.37  bolivars  to  which  the  claims  having 
a  ('etermined  value  amounted  the  commission  only  admitted  as  lawful 
and  proved  the  sum  of  1,109,615.50  bolivars. 

For  the  reasons  stated  I  am  of  opinion  that  this  commi.ssion  nuist 
declare  itself  incompetent  to  take  cognizance  of  the  claim  enteretl, 
because  the  claimants  are  Venezuelans,  and,  besides,  that  it  must 
declare  said  claim  to  be  inadmissible,  as  far  as  the  sum  of  301,784.76 


OPINION    OF    FRENCH    COMMISSIONER.  217 

bolivars  and  the  interest  thereon  are  concerned,  because  respecting 
that  part  of  the  claim  there  is  a  sentence  passed  and  ailirnied. 

As  to  the  new  promissory  notes  presented  as  a  complement  of  the 
said  claim,  they  are  not  covered  by  this  opinion,  because  as  they  are 
not  authenticated  the}''  do  not  meet  the  re(|uisito  indispensable  for 
their  being  taken  into  consideration  according  to  the  rules  of  procedure 
established  by  this  commission. 

The  French  arbitrator  was  of  opinion  that  the  claim  was  to  be 
admitted  for  the  sum  of  270,813. 5ü  bolivars  without  interest,  and  an 
agreement  not  having  been  arrived  at,  the  claim  was  referred  to  the 
umpire. 

Caracas,  August  ■¿8,  1903. 


OPINION  OF  THE  FRENCH  COMMISSIONER. 

According  to  the  exposition  made  in  his  letters  of  April  6  and  May 
13,  1903,  by  M.  Philippe  Massiani,  son  of  i\I.  Thomas  Massiani,  French 
citizen,  who  lived  in  Cariipano  and  died  there  October  9,  1901,  the 
Venezuelan  Government  would  have  been  answerable  to  the  latter 
for  a  sum  of  728,476.48  bolivars.     This  amount  is  made  up  as  follows: 

First,  341,737.36  bolivars  loaned  from  1863  to  1869  to  the  adminis- 
tration of  the  custom-house  of  Cariipano  and  to  General  Acosta,  chief 
of  the  Constitutional  arm}^  of  the  east,  this  administrator  and  this 
general  being  duly  authorized  by  the  national  Government  to  contract 
loans  in  its  name. 

Second,  351,003.12  bolivars  representing  the  interest  on  the  sum 
loaned  from  the  date  of  the  obligation  to  June  30,  1903. 

Third,  3,200  bolivars  handed  over  in  1885  upon  the  requisition  of 
Generals  Urdaneta,  Pietri,  and  Rojas. 

Fourth,  14,136  bolivars  loaned  to  the  Legalista  revolution  of  1892. 

Fifth,  18,400  bolivars  furniijhed  the  Restaurador  revolution  in  1899. 
The  amount,  which  appears  under  No.  5,  formed  the  object  of  the 
demand  for  indemnity  presented  to  the  mixed  commission  estab- 
lished by  the  protocol  signed  at  Washington  Februar}^  27,  1903.  This 
commission  allowed  to  the  Massiani  heirs,  taking  account  of  interest, 
an  indemnity  of  19,900  bolivars,  as  results  from  the  extract  below 
from  the  minutes  of  the  sitting  of  September  10,  1903: 

Doctor  Paúl  declaies  that  M.  Masgiani  (Thomas)  hcing  to-day  deceased  and  having  left 
as  heirs  his  wife  horn  in  Venezuela,  of  Venezuelan  parents  and  four  children  horn  in  Vene- 
zuela, he  sees  himself  ohliged  to  refuse  consideration  of  the  claim  presented  hy  this  French- 
man because  his  heirs  are  all  Venezuelans  according  to  Venezuelan  law,  and  the  advantage 
of  the  arbitral  tribunal  is  reserved  by  the  protocol  for  Frenchmen. 

M.  de  Peretti  replies  that  M.  Massiani  (Thomas)  who  has  himself  addressed  before  his  death 
his  letter  of  claim  to  the  legation  of  France  enjoyed  exclusively  French  nationality,  and  that 
consequently  the  commission  is  competent  to  examine  this  claim  without  its  being  necessary 
to  look  into  the  question  of  knowing  if  the  heirs  who  are  all  considered  as  Frenchmen  by  the 


218  hí:ijis  of  massiani  case. 

French  law  and  enjoy  in  reality  two  nationalities,  have  manifested  in  the  course  of  their  life 
the  intention  of  remaining  French. 

The  connnissioners  not  being  of  accord  remit  the  dossier  to  the  umpire  and  ask  him  to 
decide  if  the  claim  in  question,  and  of  which  they  do  not  discuss  the  amount ,  enters  into  the 
category  of  those  which  are  included  by  the  terms  of  the  protocol. 

Mr.  Filtz  pronounced  the  following  .sentence: 

The  umpire,  the  commissioners  l)eing  heard  and  after  the  examination  of  the  dos.sier  of  the 
claim  of  Massiani  (Thoma.s)  and  son,  considering  that  tl\e  character  of  Frenchman  is  not 
denied  to  Ma.ssiani  .senior,  that  tlie  claim  was  presented  by  him  and  not  by  his  heirs  and  that 
there  was  no  occasion  to  examine,  consequently  if  the  said  heirs  who  enjoy  in  fact  two 
nationalities  have  evidenced  in  the  course  of  flieir  life  their  preference  for  one  of  the  two, 
decides  that  the  claim  in  question  certainly  enters  into  the  categorA'  of  those  which  are  pro- 
vided for  b}'  the  protocol  and  consequently  accords  to  Massiani  (Thomas)  and  son  the 
indemnity  of  19,900  bolivars. 

The  credit  which  is  set  forth  in  number  four  enters  into  the  category 
of  claims  provided  for  by  article  1  of  the  protocol  of  February  19,  1902, 
in  that  the  Venezuelan  Government  has  accorded  a  round  sum  of 
1,000,000  bolivars.'  The  commission  which  met  at  Paris  to  make  a 
division  of  this  sum,  considering  that  the  claim  had  been  formulated 
by  M.  Thomas  Massiani,  who  enjoyed  incontestubly  French  niiti(m;.lity, 
accorded  to  his  heirs  the  indemnity  demanded.  The  credit  which 
appears  in  No.  3  is  established  by  a  "vale"  dated  June  28,  1885,  and 
signed  l)y  the  three  generals  who  made  the  requisition,  ^ly  colleague 
concludes  to  reject  tliis  demand,  because  asi(k>  from  tlie  reasons 
which  caused  him  to  refuse  all  the  claims  presented  in  the  name  of 
Massiani  thought  the  latter  ought  to  have  been  jjresented  to  the 
mixed  commission  wliich  s;it  from  1888  to  1890  and  was  competent 
to  examine  the  claims  arising  between  1869  to  1886,  and  again  that 
the  ''vale"  presented  no  authentic  character,  the  signatures  not 
being  legalized. 

I  partook  in  these  latter  points  of  the  opinion  of  Doctor  Paul  and  we 
rejected  this  demand.  The  credits  which  appear  under  Nos.  3,  4, 
and  5  are  then  out  of  the  cause. 

There  remains  the  credit  wliich  appears  under  Nos.  1  and  2  and 
which  amounts  to  692,740.48  bolivars.  When  this  claim  was  pre- 
sented to  the  mixed  commi.ssion  in  the  course  of  the  sitting  of  May  14, 
1903,  M.  Massiani  (Philippe)  had  not  yet  obtained  from  the  Venezue- 
lan Government  the  documents  wliich  seemed  to  establish  in  an  incon- 
testable manner  the  credit  of  his  father.  The  dossier  did  not  then 
establish  the  credit  until  after  the  taking  up  of  the  accounts  of  the 
Massiani  house.  Doctor  Paúl  asked  Philipj)e  Massiani,  who  was 
heard  by  the  commission  at  its  meeting  of  May  23,  1903,  to  show  that 
after  the  decease  of  his  father  he  had  acquired  lU  the  rights  ol"  tlw  (inn 
Massiani  &  Co.,  and  that  his  mother,  his  broth(M-s,  mikI  his  sisteis  h;ul 
executed  regida i'  warrants  of  attorney.  M.  Pliilip|)e  later  remitted  a 
dossier  which  satisfied  this  r(>(piest . 


OPINION    OF    FRENCH    COMMISSIONER.  219 

Of  a  common  accord  m}^  colleague  and  myself  postponed  the 
examination  of  this  affair  to  a  later  date,  M.  Massiani  havin<i::  informed 
us  that  he  was  soliciting  from  the  Venezuelan  administration  a  recog- 
nition of  the  debt.  He  obtained,  in  fact,  this  instrument  May  27, 1903, 
but  the  amount  of  the  debt  recognized  was  only  270,813.56  bolivars. 
Tliis  figure  did  not  agree  with  that  of  the  claim.  The  interested  party 
declared  that  he  would  solicit  a  rectification.  lie  did  not  remit  until 
August  4,  1903,  the  document  which,  according  to  him,  justifies  his 
claim  in  its  integral  amount. 

The  affair  entered  into  discussion  at  the  sitting  of  August  6,  1903,  as 
the  register  of  the  proceedings  of  the  commission  bears  witness: 

The  arbitrators  then  took  up  the  study  of  the  Massiani  claim,  which  in  tlic  course  of  the  sit- 
ting of  May  23  had  been  postponed  to  a  later  examination. 

After  having  passed  over  in  review  the  complementary  pieces  addressed  by  the  interested 
parties,  and  havino;  exchanged  views  with  his  colleague,  Doctor  Paúl  expressed  the  desire  to 
study  the  dossier  anew,  and  it  was  agreed  that  the  arbitrators  would  render  their  decision  on 
this  claim  at  the  next  meeting. 

At  the  meeting  of  August  24,  1903,  "after  a  new  exchange  of  views 
and  a  long  discussion,"  as  the  minutes  say,  the  affair  was  again 
reserved.  Finally  at  the  sitting  of  August  28,  1903,  Doctor  Paúl 
having  concluded  to  reject  the  demand,  I  appealed  to  the  umpire. 

I  have  accorded  to  the  Massiani  heirs  an  indemnity  of  270,813.56 
bolivars,  because  after  having  read  the  documents  sent  May  27,  1903, 
to  M.  Philippe  Massiani  by  the  minister  of  foreign  relations  it  seems 
impossible  to  me  that  the  credit  should  be  contested.  This  document 
is  an  authentic  copy  delivered  to  M.  Philippe  Massiani  upon  his  request 
by  the  director  of  public  law  to  the  minister  of  foreign  relations  with 
the  authority  of  the  minister  of  the  liquidation  of  the  credit  of  ^las- 
siani  effected  August  12,  1890.  This  liquidation  concerns  a  table  of 
loans,  with  their  dates  and  their  amounts,  extracted  from  the  books  of 
public  accounts  and  closed  with  the  following  declaration  of  Gen.  T.  B. 
Arismendi,  contador  general  de  la  s^la  de  centralización: 

Consequently  and  as  results  from  the  former  administration,  it  appears  that  M.  Thomas 
Massiani  is  the  creditor  of  the  Government  for  the  sum  of  (i7 ,70.3.30  pesos,  or  270,81.3.56 
bolivars. 

It  is  undeniable  that  on  the  date  August  12,  1890,  the  Venezuelan 
Government  owed  this  sum  to  M.  Thonii. s  Massiani.  If  the  payment  had 
been  made  since  to  the  interested  parties  it  would  have  been  very  easy 
for  the  Venezuelan  administrator  to  prove  it  by  producing  the  receipt. 
It  is  then  beyond  doubt  that  the  debtor  is  still  at  the  present  hour 
responsible  for  this  sum  to  the  personal  representatives  of  ^M.  Massiani. 

The  rights  of  succession  have  only  seemed  to  me  completely  estab- 
lished for  this  sum.  M.  Philippe  Massiani  argues  that  the  said  liqui- 
dation does  not  include  a  sum  of  30,971.40  boliv..rs,  which  caused  the 
credit  of  270,813.65  bolivars  to  amount  to  301,784.96  bolivars,  a  sum 


22U  HKIKS    OF    MASSIANI    CASE. 

already  claimed  in  vain  from  a  preceding  mixed  commission  by  M. 
Thomas  M.ssiuni.  lie  hrs  demanded  of  the  minister  of  finances  an 
officii'il  rectiric;;tion  and  he  flatters  himself  of  havin<;  obtained  it. 
Not  sliarinji  his  opinion  on  this  point,  I  have  not  been  able,  wliile 
recognizino;  for  the  interested  parties  only  the  right  rigorously  estab- 
lished, to  accord  this  supplementary  indemnity. 

I  ought  to  note  here,  for  the  information  of  the  umpire,  the  notable 
contradiction  which  exists  between  the  liquidation  of  August  12,  1890, 
and  the  official  report,  of  which  a  copy  certified  by  the  director  of  the 
budget  was  sent  to  the  minister  of  finances  June  27,  1903,  as  a  result  of 
the  demand  for  rectification  of  M.  Philippe  Massiani.  Not  only  are  the 
amounts  produced  by  the  latter  document  not  in  accord  either  with 
those  of  the  demands  nor  with  those  of  the  liquidation  of  August  12, 
1890,  but  the  uncontested  and  uncontestable  existence  of  this  latter 
liquidation  suffices  to  prove  the  inexactness  of  the  conclusion  of  this 
offici.l  report.  It  concludes,  in  fact,  that  in  the  books  of  account  one 
can  follow  the  trace  of  the  credit  only  as  far  as  April,  1870,  and  that 
the  liquidation  remitted  by  the  minister  of  foreign  relations  in  a  certi- 
fied copy  is  dated  August  12,  1890.  Is  this  only  an  error?  Does  not 
this  inexact  report  betray  the  predetermination  of  the  minister  of 
foreign  affairs  to  efface  the  impression  which  ought  to  be  produced  on 
the  arbitrators  by  the  reading  of  the  liquidation  of  1890,  the  copy  of 
which,  vainly  sought  for  during  long  years,  seems  to  have  been  obtained 
only  by  a  surprise,  thanks  to  the  friendly  relation  between  the  inter- 
ested parties  and  certain  officials  of  the  ministr}-  of  foreign  relations. 

M.  Philipjie  Massiani  claimed,  moreover,  a  sum  of  39,952.40  boli- 
vars, represented  by  receipts  :  nalogousto  those  which,  remitted  to  the 
Venezuelan  administration,  had  permitted  him  to  establish  notably 
the  liquidation  of  1890.  Why  have  these  receipts,  which  besides  do 
not  present  sufficient  authentic  character,  been  thus  preserved  ?  Why 
did  not  M.  Thomas  Massiani  present  them  to  the  mixed  commission 
of  1888?  Have  they  not  already  been  settled?  All  these  questions 
not  having  received  satisfactory  answers.  I  have  not  been  able  to 
admit  this  part  of  the  claim. 

Finally  M.  Philippe  Massiani  claimed  351,003.12  bolivars  of  interest 
reckoned  at  3  per  cent  from  the  date  of  the  obligation  to. Tune  30,  li)()3. 
I  have  not  believed  I  ought  to  receive  this  tiemand  even  for  the 
270,813.56  bolivars,  which  I  consider  indisputably  due  by  the  ^'(>ne- 
zuelan  Government.  Messrs.  Massiani,  father  and  son.  a])pei.r  in 
eifect  to  have  taken  no  steps  before  the  Venezuelan  administration  to 
obtain  from  it  the  reimbursement  of  their  credit.  They  have  both 
waited  before  filing  their  claim  for  the  meeting  of  the  mixed  commis- 
sions. They  have  then  waited  of  their  own  free  will  ¡Mid  h  vc  thus 
lost  the  chance  to  see  themselves  rewarded  by  a  judge  basing  liimself 


OPINION    OF   FRENCH    COMMISSIONER.  221 

upon  equity  alone  for  the  interest  which  in  right  they  ought  not  to 
have  counted  upon. 

I  have  already  explained  why  I  could  not  share  the  opinion  of  my 
honorable  colleague  upon  the  value  of  the  document  remitted  to 
M.  Philippe  Massiani  May  27,  1903,  a  document  which,  in  my  opin- 
ion, proves  superabundantly  the  credit  of  the  Mi.ssianis.  Besides  the 
fact  the  document  does  not  seem  to  him  "sufficient  to  prove  the 
existence,  of  the  debt  in  a  decisive  manner,"  Doctor  Paúl  justifies 
the  rejection  of  this  claim  by  considerations  drawn  from  the  nation- 
ality of  the  Massiani  heirs  and  by  the  fact  that  the  mixed  commission 
of  1888-1890  has  already  rejected  the  demand  in  question.  M.  Thomas 
Massiani,  born  in  France  of  French  parents,  enjoyed  incontestably 
and  exclusively  French  nationality.  His  title  of  French  citizen  has 
been  certified  by  the  legation  of  France  at  Caracas  and  recognised 
by  the  Venezuelan  commissioner  at  the  mixed  commission  of  1888- 
1890.  The  claim  was  born  during  the  life  of  Thomas  Massiani.  It 
is  the  right  of  a  French  citizen  who  has  been  injured,  and  conse- 
quently the  mixed  commission  appointed  by  the  protocol  of  Paris, 
wliich  includes  "the  demands  for  indemnities  presented  by  French- 
men," is  indeed  competent  to  consider  this  claim. 

One  might  insist  upon  that,  as  the  mixed  commission  appointed  by 
the  protocol  of  Washington  has  done  successive!}^  for  the  same  inter- 
ested party  for  part  No.  5  of  their  claim  and  the  commission  of 
repartition  appointed  by  the  French  Government  for  No.  4. 

One  would  place  then  out  of  the  case  as  the  umpire,  Mr.  Filtz,  has 
done  in  his  award,  the  nationality  of  the  heirs.  But  I  consider  that 
even  if  one  takes  this  latter  into  consideration  the  arbitral  commission 
created  by  the  protocol  of  Paris  has  jurisdiction.  The  widow  of 
Thomas  Massiani,  bom  in  Venezuela,  of  Venezuela  parents,  but  mar- 
ried to  a  Frenchman,  and  her  children,  born  in  Venezuela  of  French 
parents,  all  enjoy  incontestably  two  nationalities.  They  are  French 
according  to  French  law  and  Venezuelans  according  to  Venezuelan 
law.  It  results  that  when  the  protocol  speaks  of  ''demands  for  indem- 
nities presented  by  Frenchmen"  it  has  in  mind  claims  presented  by 
individuals  to  wliich  the  French  Government  assures  its  protection 
because  the  French  law  recognizes  them  as  Frenchmen.  It  is  in  no 
way  specified  in  the  protocol  that  the  Venezuelan  law  will  be  obliged 
also  to  recognize  these  individuals  as  Frenchmen.  On  the  contrary, 
all  the  protocols  signed  last  year  at  Washington  between  Venezuelan 
and  foreign  powers  to  regidate  analogous  tliíRculties  have  declared 
expressly  that  local  legislation  ought  not  to  be  taken  into  account. 
Then,  even  if  the  heirs  of  Mr.  Thomas  Massiani  had  presented  a  claim 
in  their  personal  name,  the  arbitral  commission  would  have  been  quali- 
fied to  examine  it.  It  is  so  with  nmcli  greater  reason,  since  this  claim 
concerns  a  credit  of  Mr.  Thomas  Massiani  himself. 


222  HEIRS    OF    MASSIANI    CASE. 

On  the  other  hand,  it  is  tnie  that  the  mixed  commission  of  1888-1890 
rendered,  at  its  sitting  of  Jidy  7,  1890,  the  following  award: 

Tiie  second  part  of  the  same  claim  (claim  Thomas  Massiani),  amounting  to  301,784.96 
bolivars,  is  definitely  rejected,  the  interested  party  not  supporting  his  demand  by  a  suffi- 
cient document. 

But  it  is  necessary  to  know  that  this  "sufficient  document"  was  in 
the  hands  of  the  Venezuelan  Government,  which,  being  reciuested  by 
the  interested  party,  did  not  make  it  out  until  the  12th  of  August,  1890, 
after  the  close  of  the  labors  of  the  commission,  and  did  not  deliver  a 
copy  to  Mr.  Philippe  Massiani  until  May  27,  1903.  One  can  tlien  dis- 
cuss in  what  case  and  by  what  tribunal  may  an  award  rendered  by  the 
mixed  commission  of  1888-1890  be  revised. 

One  could,  however,  remark  that,  this  commission  having  rendered 
irrevocable  decisions,  these  decisions  could  not  be  submitted  to  a 
revision  unless  a  new  fact  unknown  to  the  arbitrators  has  appeared  to 
modif}"  the  appearance  of  the  affair  in  such  a  manner  that  the  decision 
may  have  been  entirely  different  if  the  arbitrators  had  knowledge  of  it. 
One  might  establish  then  that  this  is  precisely  the  case  of  the  Massiani 
claim.  Finalh",  one  might  maintain,  with  reason,  that  no  tribunal 
would  be  better  ((ualified  than  the  present  arbitral  commission  to 
examine  anew  an  affair  already  submitted  to  the  mixed  commission  of 
1888-1890,  and  that  even  the  protocol  giving  it  competency  to  regu- 
late all  the  claims  of  Frenchmen,  whether  they  were  directed  against  a 
former  award  or  caused  by  an  entirely  different  motive,  this  arbitral 
commission  is  alone  in  position  to  decide  if  there  is  room  to  revise  such 
or  such  decision  of  the  preceding  commission. 

In  equity,  the  document  sent  May  27,  1903,  to  M.  Philippe  Massiani 
establishing  incontestably  the  existence  of  his  credit,  and  the  arbi- 
trators of  1890  having  only  rejected  the  Massiani  claim  for  lack  of 
probative  document  retained  by  the  Venezuelan  administration,  an 
arbitrator  can  but  condemn  the  Venezuelan  Government  to  reimburse 
the  Massiani  heirs  for  the  sum  which  it  has  recognized  itself  as  due  him. 

In  the  course  of  our  discussions  relative  to  this  claim  Doctor  Paúl 
declared  to  me  that  he  would  have  been  disposed  to  accord  an  indem- 
nity equal  to  the  sum  included  in  the  liquidation  of  1890  if  the  inter- 
ested party  had  filed  a  new  claim  bearing  upon  the  refusal  of  the 
Government  to  deliver  the  document  which  was  demanded  of  it. 

I  replied  that  this  was  a  simple  (juestion  of  form,  that  the  ex])o>é 
made  in  the  letters  of  M.  Massiani  of  his  numerous  proceedings  take 
the  place  of  the  formal  claim,  and  that  one  could  not,  in  order  to  reject 
his  proven  claim,  base  his  acticm  upon  the  moderation  the  claimant 
had  displayed  in  not  asking,  besides  the  sum  due,  a  special  indenmity 
for  the  veritable  denial  of  justice  which  this  refusal  in  <|Uestion  con- 
stituted. In  according  to  the  heirs  of  Ma.ssiani  only  270,81 3. oti  boli- 
vars of  the  692,740.48  bolivars  demanded,  I  have  sought  to  restore 


ADDITIONAL    OPINION    OF    VENEZUELAN    COMMISSIONER.        223 

them  possession  of  that  which  is  incontestably  tkic  them.  I  have  laid 
aside  all  the  demands  which,  not  being,  perhaps,  without  some  founda- 
tion, are,  however,  not  established  by  sufTicient  proofs. 

We  ought  to  consider  that,  according  to  the  terms  of  the  protocol, 
this  indemnity  must  be  paid  in  bonds  of  diplomatic  debt  and  not  in 
gold.  From  the  fact  of  this  concession,  graciously  granted  to  the 
Venezuelan  Government  by  the  French  Government,  to  allow  it  to 
settle  its  debts  with  more  facility  the  amount  of  the  indemnity  finds 
itself  in  reality  reduced. 

At  this  time  the  true  value  of  these  bonds  is  half  their  nominal  value. 

The  payment  of  the  Massiani  heirs  of  the  indemnity  of  270,813.56 
bolivars  would  then  permit  the  Vene/Aielan  Government  to  free  itself 
by  125,000  bolivars  of  a  debt  amounting  in  reality  to  270,813.56 
bolivars. 

^Iarch  12,  1904.  

ADDITIONAL  OPINION  OF  THE  VENEZUELAN  COMMISSIONER. 

From  the  extract  of  the  oral  proceedings  at  the  sitting  held  in 
Caracas  on  August  28,  1903,  when  the  commissioners  for  France  and 
Venezuela  heard  the  claim  entered  by  Felipe  A.  Massiani  for  the  sum 
of  692,740.80  bolivars,  it  appears  that  the  French  commissioner  held 
that  the  sum  of  270,813.56  bolivars,  representing  the  principal,  should 
be  awarded  without  interest,  because  of  the  negligence  for  many  years 
shown  by  the  claimants  in  defense  of  their  rights.  The  same  commis- 
sioner also  rejected  other  specifications  contained  in  the  claim,  as  he 
did  not  consider  them  sufficiently  established.  The  undersigned,  as 
the  commissioner  for  Venezuela,  then  and  there  rejected  the  claim  in 
its  entirety,  basing  my  contention  as  shown  in  the  opinion  which, 
translated  into  English,  I  submit  herewith,  in  these  three  main  points, 
to  wit: 

First.  Incapacity  for  want  of  proper  jurisdiction  of  tliis  arbitration 
commission  to  hear  the  claim  in  (juestion,  ])ecause  Felipe  A.  Massiani 
and  the  rest  of  the  claimants  represented  by  him  are  Venezuelans,  hav- 
ing been  born  within  Venezuelan  territory. 

Second.  Because  there  exists  a  condition  of  res  judicata  as  regards 
the  object  of  the  claim  in  that  portion  dealing  with  the  capital  of 
270,813.56  bolivars  as  submitted  by  the  French  commissioner;  and 

Third.  Because  the  document  produced  by  Felipe  A.  Massiani  to 
prove  the  existence  of  the  debt  lacks  sufficient  force  to  establish 
beyond  dispute  the  validity  of  the  claim,  such  document  being  insufii- 
cient  to  overrule  the  award  of  the  French- Venezuelan  mixed  com- 
mission of  1888-1890,  decreed  in  the  matter  of  the  claim  enteretl  before 
said  commission  by  the  father  of  Felipe  A.  Massiani,  demanding  the 
same  amount. 

The  Venezuelan  citizenship  by  birtli  of  the  claimants,  Carmen  Silva 
de  Massiani,  the  widow  of  Tomás  Massiani;  Felipe  A.  ^|assiani.  Aseen- 


224  HEIRS    OF    MASSIANI    CASE. 

ción  Massiani  de  Phelan,  Xuncia  Massiaiii  <le  Orsini,  and  Luis  A.  Mas- 
siani,  children  of  Tomás  Massiani;  and  the  minor  chilch'en  of  Isabel 
Paran  de  Massiani,  Antonio  José,  Tomás  María,  Mercedes,  Luis 
Enri(|ue,  Carmen  de  Lourdes,  and  Gloria,  born  during  her  marriage  to 
Antonio  Massiani,  deceased,  the  son  of  Tomás  Massiani,  such  minors 
being  the  grandsons  of  the  latter,  is  fully  established  in  this  case  and 
is  not  a  point  open  to  discussion.  All  of  them,  during  a  succession  of 
years  embracing  three  generations,  have  not  <Mdy  had  one  connnon 
native  land,  l)ut  one  common  city  of  birth,  Carúpano,  formerly  a 
fishermen's  town,  where  Tomás  Massiani  met  and  married,  in  1858, 
Carmen  Silva.  The  domicile  of  the  widow  has  always  continued  to 
be  the  same  as  that  of  her  forefathers  and  that  of  all  her  children  and 
grandchildren.  From  the  moment  of  her  widowhood  she  recovered 
her  Venezuelan  nationality,  according  to  the  provisions  of  article  19, 
section  2,  Title  I,  Book  I  of  the  civil  code  of  Venezuela,"  in  force  at  the 
time  of  the  death  of  Tomás  Massiani,  which  tt)ok  place  in  Carúpano  on 
October  9,  1901.  Her  daughters.  Ascención  Massiani  de  Phelan  and 
Nuncia  Massiani  de  Orsini,  do  not  appear  to  have  lost  their  original 
nationality,  as  the  foreign  nationality  of  their  respective  husbands  has 
not  been  estal)lished. 

It  is  a  generally-established  principle  that  the  individual  status  is 
governed  by  the  laws  of  the  country  of  which  a  man  or  woman  is  a 
citizen  or  subject,  and  the  nationality  in  the  case  of  the  widow  and 
children  of  Toiíiás  Massiani  as  regards  Venezuela  is  fixed  by  birth  or 
lex  loci.  The  conflict  between  French  legislation  which  maintains  the 
principle  of  descent,  or  lex  sanguinis,  and  the  Venezuelan  laws,  which 
support  the  principle  of  the  birthplace,  has  already  been  the  subject 
of  learned  discussions  by  mixed  tribunals,  when  it  has  been  invariably 
decided  that  the  conflict  is  controlled  ]\v  the  law  of  domicile,  and  in 
conjunction  with  this  ruling  the  no  less  weighty  doctrine  that  in  such 
controversies  the  principle  that  in  the  event  of  double  citizenship,  no 
country  can  claim  for  a  person  having  the  nationality  of  the  respoiulent 
country,  but  it  may  claim  against  all  other  countries. 

Bluntschli  (International  Law,  section  374)  states  the  following: 

Certain  persons  or  families  may  in  rare  instances  be  under  the  jurisdiction  of  two  or 
even  a  larger  number  of  different  states.  In  case  of  conflict  the  preference  will  be  triven 
to  the  state  in  which  the  individual  or  family  in  question  have  their  domicile:  their  rights  in 
the  state  where  they  had  no  residence  will  be  considered  suspended.  (> 

a  Art.  19.  La  venezolana  que  se  casare  con  un  extranjero  se  reputará  como  extranjera 
respecto  de  los  dereclios  propios  do  los  vene/.olanos,  sicmpio  (|ue  por  el  liecho  del  matri- 
monio adquiera  la  nacionalidad  del  mai  ido  y  mientras  pcrmanezi'a  casiuia. 

í> Certaines  personnes  ou  familles  peuvent  exceptionnellement  t^tre  ressortissants  de 
deux  ilats  différents  ou  même  d'un  plus  grand  noml)re  d'états. 

En  cas  de  conflit,  la  piéférence  sera  accordée  à  l'étal  dans  le(|uei  la  personne  on  la 
famille  (^n  (juestion  ont  leur  domicile;  leur  droits  dans  les  états  où  elles  ne  résident  pas 
seront  considérés  comme  suspendus. 


ADDITIONAL    OPINION    OF    VENEZUELAN    COMMISSIONER.       225 

The  same  opinion  is  held  by  Twiss,  "Law  of  Nations,"  pages  231- 
232. 

Moore,  Int.  Arbit.,  vol.  3,  page  2454,  in  the  cases  of  Lucien  Lavigne, 
No.  11,  and  Felix  Bister,  No.  20;  decision  of  Arbitrators,  wSpanish 
Commission,  (1871),  April  27,  1878,  says: 

The  act  of  Congress  of  Febi-uaiy  10,  1855  (10  U.  S.  Stat.  L.,  (Jul),  wliicli  provides  that 
persons  lieretofore  bom,  or  hereafter  to  be  born,  out  of  the  limits  and  jurisdiction  of  the 
United  States,  whose  fathers  were  or  shall  be  at  the  time  of  their  birth  citizens  of  the  United 
States,  sliall  be  deemed  and  considered  and  are  hereby  declared  to  be  citizv'ns  of  the  United 
States,  can  not  operate  so  as  to  interfere  with  the  ullo(¡ciance  whicli  such  children  may  owe 
to  the  country  of  their  birth  while  they  continue  within  its  territory. 

Supposing,  finally,  that  one  individual  united  in  his  person  several  nationahties,  it  would 
be  necessary  to  apply  the  law  best  agreeing  with  his  actual  position,  otherwise  the  question 
would  be  insoluble.     (Heffter,  Paris,  1866,  p.  74.)  a. 

It  was  under  circiunstances  similar  to  those  of  the  present  claimants 
that  the  mixed  American  and  Venezuelan  commission,  acting  under 
the  protocol  of  December  5,  1885,  settled  the  question  of  double 
nationality  in  the  case  of  Narcissa  de  Hammer  and  Amelia  de  Brissot, 
both  born  in  Venezuela,  both  widows  of  United  States  citizens,  and 
both  having  resided  in  Venezuela  during  their  married  lives,  both 
having  had  children  born  in  the  same  country,  both  claiming  in  behalf 
of  their  respective  children,  and  both  having  continued  to  reside  in 
Venezuela  after  the  death  of  their  respective  husbands.  The  unani- 
mous decision  of  the  commission  was  that  they  had  no  jurisdiction  to 
hear  and  decide  the  claim.  (See  Moore,  Int.  Arbit.,  vol.  3,  pp.  2456- 
2461.) 

Many  other  analogous  cases  could  be  cited  to  corroborate  the  prin- 
ciple involved  in  this  question  of  jurisdiction,  but  they  are  well  known 
to  the  honorable  umpire,  who  has  quoted  them  in  enlightened  awards 
that  in  his  capacity  of  umpire  he  had  occasion  to  render  in  the  claims 
of  Mathison  against  the  Venezuelan  Government  before  the  British- 
Venezuelan  commission,  created  by  the  protocol  of  Washington  on 
February  13,  1903,  and  in  his  award  in  the  case  of  Stevenson  against 
that  Government  before  the  same  commission.  (Venezuelan  Arbi- 
trations of  1903,  Ralston's  Report,  pp.  433-438  and  442-455.)  The 
Hon.  Jackson  II.  Ralston,  umpire  in  the  Italian- Venezuelan  Commis- 
sion under  the  Washington  protocol  of  February  13,  1903,  rendered 
similar  decisions  in  the  claims  of  Miliani,  Brignone,  and  Poggioli, 
(Ralston's  Report,  pp.  715-720,  759-762,  866.) 

The  learned  commissioner  for  France  makes  an  issue  of  the  French 
nationality  of  Tomás  Massiani,  who  was  the  husband  of  Carmen  Silva 
de  Massiani  and  the  father  of  Felipe  A.  Massiani  and  his  brothers  and 
sisters,  to  maintain  that  the  claim  entered  by  the  latter  before  this 

a  Supposé  enfin  qu'  un  individu  réunît  en  sa  personne  plusieurs  nationalités  distinctes, 
il  faudrait  appliquer  les  lois  qui  s'accorderaient  le  mieux  avec  sa  position  actuelle;  autre- 
ment la  question  serait  insoluble. 
S.  Doc.  533, 59—1 15 


226  HEIRS    OF    MASSIANI    CASE, 

commission  orifjinated  durino;  the  life  of  thoir  father;  that  tlie  injured 
rights  are  those  of  a  P>ench  citizen,  and  tlie  mixed  (  ommission  created 
by  the  Paris  protocol  deaHng;  with  the  chiims  for  indemnification 
entered  by  French  citizens  "is  quahfied  to  liear  the  present  <hiim 
without  talcing  into  consideration  the  citizensMp  of  the  heirs  of  Tonuifi 
Massiani."  Such  opinion  can  not  be  maintained  in  the  presence  of 
the  strict  terms  of  the  Paris  protocol,  which  vest  this  commission  with 
but  limited  authority  to  investigate  and  decide  the  indemnification 
claims  entered  by  Frenchmen.  When  the  terms  of  a  convention  have 
been  clearl}^  and  precisely  stated,  there  is  no  room  for  interpretation, 
but  the}^  must  be  applied  with  strict  adherence  to  the  meaning  of  tlie 
words.  The  respective  article  of  the  protocol  states  "claims  for 
indemnification  entered  by  Frenchmen."  Entered  before  whom? 
Before  the  commision.  Entered  by  whom?  By  Frenchmen,  and 
under  no  condition  by  the  heirs  of  French  citizens,  no  matter  what  the 
nationality  of  such  heirs  may  be.  Nor,  how  could  it  be  possible  that 
because  there  exists  a  right  which  has  passed  to  a  Venezuelan  citizen 
or  an  English  or  Chinese  subject  by  descent  from  a  French  citizen,  the 
country  of  which  the  deceased  was  a  citizen,  should  arrogate  to  itself 
the  authority  to  enter  an  action  as  a  claimant  against  Venezuela,  if  the 
claimant  is  a  Venezuelan,  or  to  invoke  the  protecting  action  of  England 
or  China  in  case  the  owners  of  the  credit  or  of  the  injured  right  be  an 
English  or  Chinese  subject?  Such  anomalies  can  not  exist  within  the 
precedents  and  principles  of  international  law.  It  is  indispensable 
that  the  claim  in  its  origin  should  have  belonged  to  a  Frendi  citizen; 
and,  ñirthermore,  that  it  has  continued  to  be  the  property  of  a  French 
citizen  until  the  very  moment  in  which  by  virtue  of  a  convention 
entered  into  by  the  two  countries  such  claim  is  entered  before  the  proper 
commission  to  be  investigated  and  decided  upon.  Countless  decisions 
of  international  commissions  (  onfirm  this  as  the  only  possible  rule  to 
maintain  the  jurisdiction  of  such  courts  within  the  limits  which  their 
own  nature  and  the  ends  to  be  served  b}^  them  mark  as  indispensable 
for  the  performance  of  their  legal  functions. 

The  right  of  France  to  intervene  on  behalf  of  a  French  (  itizen,  in 
case  Tomás  Massiani  should  have  entered  before  his  death  a  daim 
against  the  Venezuelan  Government,  would  have  ceased  to  exist  on 
the  day  the  claimant  died,  if  he  had  not  left  either  ascendants,  descend- 
ants, or  collateral  heirs,  or  if  he  had  not  been  married.  It  would  also 
have  ceased,  if  his  widow  or  the  ascendant  or  descendant  heirs  should 
have  deprived  the  country  of  the  husband  or  father  of  the  right  to 
intervene  by  acts  of  their  own  volition  or  because  they  lack  the  per- 
sonal status  in(lis])ensable  to  appear  before  this  connnission  and  be 
awarded  indemnities  which  the  commission  (an  nt)t  grant  to  other  than 
such  ])ersons  as  enjoy  solely  French  nationality  established  beyonil 
dispute. 


ADDITIONAL    OPINION   OF    VENEZUELAN    COMMISSIONER.       227 

The  coiiimissionor  for  Venezuela,  in  support  of  this  ri<îlit  apphcation 
of  Article  I  of  the  Paris  protocol,  adduces  the  ft)llo\vin<::  authorities: 

Sir  Edward  Thornton,  umpire  in  the  case  of  M.  J.  de  Lizardi  aj^ainst 
Mexico,  entered  by  his  niece  Maria  de  Lizardi  del  Valle,  wife  of  Pedro 
del  Valle,  makes  the  following  statement  : 

As,  therefore,  Mr.  Lizardi's  niece  is  not  a  citizen  of  tlic  United  States,  and  as  she  would  be 
the  beneficiary  of  whatever  award  the  commission  might  make,  the  umpire  is  decidedly  of 
opinion  that  the  case  is  not  within  the  jurisdiction  of  the  commission.  Even  if  the  uncle  of 
Mr.  Lizardi  had  been  a  citizen  of  the  United  States,  whidi  the  umpire  does  not  admit, 
wliatever  maj'  have  been  the  merits  of  the  case,  the  jurisdiction  of  the  connni-ssion  would 
have  ceased  on  the  death  of  Mr.  Lizardi.     (Moore's  Int.  Arbit.  vol.  3,  p.  2483.) 

In  the  claim  of  Oscar  Chopin  aj^ainst  the  United  States,  «  under  the 
convention  of  January  5,  1870,  entered  in  his  own  behalf  and  the  name 
of  three  heirs  to  Jean  Baptiste  Chopin,  a  Frencli  (  itizen,  resident  of 
Louisiana,  who  died  in  1870,  leaving  three  other  heirs,  all  born  in  the 
United  States,  as  a  portion  of  his  estate,  the  claim  in  c^uestion,  the 
counsel  for  France  withdrew  that  portion  of  the  claim  representing  the 
share  of  one  of  the  four  heirs  of  Jean  Baptiste  Chopin  on  the  grounds 
that  such  heir  had  married  a  citizen  of  the  United  States,  thus  clearly 
recognizing  the  principle  that  the  riglit  to  an  indemnification  is  gov- 
erned by  the  legal  and  individual  interest  of  the  beneficiary  and  not  by 
the  original  wrong  or  the  damages  sustained  by  the  French  nationality. 

In  the  case  of  José  María  Jarrero  under  the  resolution  of  Congress 
March  3,  1849,  for  the  settlement  of  the  claims  of  the  United  States 
against  Mexico,  the  original  claim  was  in  favor  of  a  citizen  of  the 
United  States,  but  before  the  conclusion  with  Mexico  of  tlie  treaty 
which  created  the  commission  such  daim  passed  to  a  Mexican  citizen. 
The  commission  disallowed  the  claim  and  made  the  following  statement  : 

It  matters  not  that  the  claim  was  American  in  its  origin.  It  had  ceased  to  be  American 
at  the  date  of  the  treaty,  and  the  holder  of  it  could  not  invoke  the  interposition  of  our  Gov- 
ernment for  his  protection.     (Moore,  Int.  Arbit.  vol.  3,  p.  2325.) 

Parti*,  ular  mention  should  be  made  of  the  excerpts  found  in  Moore's 
International  Arbitration,  vol.  3,  page  2388  of  the  "notes"  published 
by  one  of  the  members  of  the  commission  created  by  the  convention 
between  the  United  States  and  France  July  4,  1831,  showing  that  this 
matter  was  considered  by  said  commission. 

It  was  of  course  indispensable  to  the  validity  of  a  reclamation  before  the  commissioners 
that  it  should  be  altogether  American.  This  character  was  held  by  them  to  l)elong  onlv  to 
cases  where  the  individual  in  who.se  right  the  claim  was  preferred  had  been  an  American 
citizen  at  tlie  time  of  the  wrongful  act,  and  entitled  as  such  to  invoke  the  protection  of  the 
United  States  for  the  property  w^hich  was  the  subject  of  (he  wrong  and  where  the  claim  up 
to  the  (late  of  the  convention  had  at  all  times  l)elongcd  to  American  citizens. 

Again — 

It  was  necessary  for  the  claimant  to  show  not  only  that  his  property  was  American  when 
the  claim  originated,  but  that  the  ownership  of  the  claim  was  still  American  when  the  con- 

o  Moore,  Int.  Arb.,  p.  2506;  page  83,  Boutwell's  report,  House  Ex.  Doc.  No.  235,  Forty- 
eighth  Congress,  second  session. 


228  HEIRS    OF    MASSIANI    CASE. 

vention  went  into  effect.  *  *  *  Xor  could  a  claim  that  had  lost  its  American  character 
ever  resume  it  if  it  had  heretofore  passed  into  the  possession  of  a  foreigner  or  of  one  othencise 
incapacitated  to  claim  hefore  this  commission. 

The  uin])ire  above  mentioneil,  Sir  Edward  Thornton,  in  the  case  of 
Herman  F.  Wiilfl"  against  Mexico  (Moore,  pp.  1353-1354,  note), 
decided  : 

The  umpire  can  not  acquiesce  in  the  arguments  put  forward  by  the  counsel  for  the  claimant, 
whoever  that  clamant  may  be.  He  is  of  opinion  that  not  only  must  it  he  proved  that  the 
person  to  whom  the  injury  was  done  was  a  citizen  of  the  United  States,  hut  also  that  the 
direct  recipients  of  the  award  are  citizens  of  the  United  States,  whether  these  henefciaries 
he  heirs  or,  in  failure  of  them,  creditors. 

In  the  case  of  Silvio  and  Americo  PoggioH,  a  native  of  Italy  and  an 
Italian  subject,  before  the  Italian- Venezulean  commission  under  the 
protocol  of  February  13,  1903,  the  umpire,  the  Hon.  Jackson  II. 
Ralston,  decided  in  the  matter  of  the  claim  of  Americo  Poggioli,  who 
died  before  the  convention  took  place,  as  follows: 

However  this  may  be,  the  claim  of  Americo  Poggioli  died  with  him,  so  far  as  this  commis- 
sion is  concerned,  as  his  only  heirs  consist  of  his  widow  and  children,  and  all  of  whom  are 
Venezuelans  by  birth.  The  claim  of  his  heirs  is  therefore  Venezeulan,  under  the  nilcs  here- 
tofore adopted  by  the  umpire,  particularly  in  the  Brignone  and  Miliani  cases.  (Venezuelan 
Arbitrations  of  1003,  Ralston 's  Report,  p.  866.) 

The  decision  quoted  by  my  learned  colleague  in  his  brief,  rendered 
by  Mr.  Filtz,  umpire  in  the  French- Venezuelan  mixed  commission, 
which  met  in  Caracas  imder  the  Washington  protocol  of  February, 
1903,  establishing  that — 

the  condition  of  French  citizenship  of  Tomás  Massiani  had  not  been  disputed  ;  that  the  claim 
in  reference  had  been  entered  by  him  and  not  by  his  heirs,  and  that  there  was  no  need  to 
examine  whether  said  heirs,  who,  in  eilect.  have  a  double  citizenship,  have  .shown  or  not 
during  their  life  their  preference  for  one  or  the  other,  and  that  therefore  he  adjudged  tlie 
claim  to  belong  to  the  class  under  the  Washington  protocol  and  accordingly  awarded  Tomás 
Massiani  and  sons  an  indemnification  of  19,900  bolivars — 

is  not  a  precedent  to  be  invoked.  Such  a  decision  is  exclusively  based 
upon  the  fact  that  the  claim  was  presented  to  the  minister  of  France 
in  Caracas  by  Tomás  Massiani,  father  himself,  and  such  is  not  the  case 
with  the  present  claim  entered  before  this  conmiission  by  the  widow 
and  children  of  Tomás  Massiani.  On  the  other  hand,  the  awards  of 
Mr.  Filtz,  as  umpire  in  the  French- Venezuelan  Connnission,  be  it  said 
without  the  desire  to  cast  the  slightest  reflection  upon  his  integrity, 
are  noticeable  because  they  are  based  solely  on  his  own  appreciation 
of  the  facts,  without  expounding  any  do(^trine  whatever,  without  rea- 
soning the  conclusions,  which  in  the  majority  of  cases  are  contrary  to 
the  rides  and  precedents  established  as  fundamental  principles  of  inter- 
national law  l)y  the  most  eminent  authors,  expounders,  and  authori- 
ties on  the  subject  having  a  universal  reputation.  Such  decisions 
lack  force  as  compared  with  the  o])inions  (juoted  from  among  uumy 
others  no  less  weighty  that  could  be  cited. 


ADDITIONAL   OPINION    OF    VENEZUELAN    COMMISSIONER.       229 

Tomás  Massiani  died  in  the  city  of  C'arúpano  during  tlic  month  of 
October,  1901,  as  shown  by  the  death  certificate  in  this  case,  before 
the  conchision  of  the  Paris  i)rotocol  of  February  19,  1902,  croatinfj  this 
commission,  and  without  having  entered  before  any  representative  of 
France,  nor  later  before  the  mixed  commission  of  1888-1890,  any 
claim  whatever  that  may  be  construed  to  be  the  same  entered  before 
this  commission  b}'^  his  widow  and  children  in  their  capacity  of  heirs. 

The  present  claim,  as  regards  that  portion  of  the  same  for  270,813.56 
bolivars,  which  has  been  admitted  by  the  French  commissioner,  origi- 
nated, and,  it  may  be  said,  was  born  in  Felipe  A.  Massiani,  in  his  own 
behalf,  and  in  behalf  of  his  mother.  Carmen  Silva  de  Massiani,  and  his 
brothers  and  sisters,  on  May  27,  1903,  date  of  the  document  or  certifi- 
cation issued  by  Mr.  Manuel  Fombona  Palacio,  chief  of  the  bureau  of 
foreign  public  law  {director  de  derecho  publico  exterior)  in  the  ministry 
of  foreign  relations  of  Venezuela.  The  claimants  base  their  preten- 
tions in  such  documents,  and  as  Felipe  Massiani  states  in  the  commu- 
nication to  the  French  minister  in  Caracas,  dated  on  August  4,  1903, 
that  the  mixed  commission  of  1888-1890  not  having  passed  judgment 
upon  his  father's  claim,  because  of  the  facts  and  causes  stated,  it 
becomes  necessary  to  conclude  that  those  same  facts  are  at  present 
the  object  of  a  new  claim,  and  ends  by  asking  the  French  minister 
to  transmit  to  the  commissioners  the  subjoined  document,  which  is 
sufficient  to  establish  the  proof  of  the  grounds  for  the  claim  he  had 
entered  before  the  commission  in  behalf  of  his  mother,  his  brothers  and 
sisters,  and  in  his  own  behalf. 

The  foregoing  shows  that  neither  as  heirs  of  Tomás  Massiani, 
because  he  was  a  French  citizen,  his  widow  and  children  being  of 
Venezuelan  nationality,  in  the  case,  which  has  never  nor  could  ever 
have  existed,  of  Tomás  Massiani  having  presented  such  claim,  because 
he  died  before  the  date  of  the  Paris  protocol,  nor  entering  the  claim 
on  their  own  behalf,  as  the  case  is,  the  widow  and  children  of  Tomás 
Massiani  are  not  qualified  to  appear  before  this  commission  as  claim- 
ants against  the  Venezuelan  Government,  which  is  that  of  their  own 
nation  and  to  which  they  owe  allegiance  in  conformity  with  the  law. 
The  commission  therefore  has  no  jurisdiction  to  hear  the  claim  for 
indemnification  that  such  Venezuelan  citizens  have  entered  before  the 
commission  in  their  own  name  and  in  behalf  of  the  estate,  based  upon 
certain  vested  rights  originating  in  the  deceased. 

Now  the  commissioner  for  Venezuela  will  discuss  the  second  point 
upon  which  he  has  based  his  opinion,  i.  e.,  that  because  there  exists  a 
condition  of  res  judicata  as  regards  the  object  of  the  claim  in  that 
portion  dealing  with  the  capital  of  270,813.56  bolivars,  as  admitted  by 
the  French  commissioner,  such  portion  of  the  claim  must  also  be 
rejected.  As  it  has  been  shown  by  the  opinion  rendered  at  the  .session 
of  August  28,  1903,  Felipe  A.  Massiani,  in  his  own  behalf  and  as  the 


230  HEIRS    OF    MASSIANI    CASE. 

representative  of  his  mother  and  children,  pretends  that  this  conunis- 
sion  should  examine  some  new  documentar}^  evidence  he  has  obtained 
after  his  father's  death  to  the  end  of  estaldisliin<:  that  tlie  Government 
of  Venezuela  owed  his  predecessor  in  interest  a  certain  sum,  object 
of  the  claim  entered  before  the  French- Venezuelan  Commission  which 
met  in  Caracas  in  1888-1890  in  compliance  with  the  convention 
entered  into  between  Venezuela  and  France  in  November,  1885,  said 
commission  having  disallowed  the  claim  because — 

the  said  claim,  amounting  to  301,784.96  })olivars,  was  disiillowod  because  the  interested 
part}'  did  not  produce  a  sufficient  document  on  which  to  base  his  pretention. 

I  submit  herewith  copy,  both  in  Spanish  and  in  Enfjlish,  of  the  min- 
utes of  the  oral  proceedings  of  said  mixed  commission,  had  on  July  7, 
1890.  when  all  the  claims  of  Mr.  Tomás  Massiani  were  examine  1,  the 
commissioners  dismissing  one  for  301,784.96  bolivars  for  the  reast)ns 
before  stated.  The  disallowance,  as  shown  by  the  arguments  in  sup- 
port of  such  ruling,  was  not  based  upon  want  of  jurisdiction,  nor  on  any 
other  grounds  which  may  give  rise  to  the  contention  that  the  claim 
had  not  been  examined  on  its  merits.  It  was  based  upon  no  other 
groimds  than  the  failure  of  the  claimant  to  establish  the  pretended 
right  or  indebtedness,  as  the  document  submitted  did  not  have  suili- 
cient  weight  to  operate  against  the  respondent  party.  Such  I'ecision 
constitutes  the  res  judicata,  which  all  the  positive  as  well  as  the  c()m- 
mon  law  of  nations  hold  to  have  an  irresistible  force,  as  shown  by 
the  principle  res  judicata  yro  veritate  hahetur. 

The  internal  legislation  of  Venezuela  affords  a  remedy  against  any 
judgment  passed  by  the  courts  of  the  country  to  obtain  in  s])eciiled 
cases  the  reversal  of  such  judgment,  provided  the  remedial  action  is 
entered  within  three  months  after  notice  has  been  had  of  the  sentence 
making  the  award,  when  the  grounds  for  reversal  are  ])a5;ed  u})on  the 
fact  that  the  other  party  withholds  or  retains  in  his  possession  a  decisive 
document  favorable  to  the  action  or  exception  taken  by  the  plaintiff 
or  based  upon  an  act  of  the  opposing  part}^  whicli  prevented  that  such 
decisive  document  was  produced  in  (hie  and  proper  time.  In  such 
cases,  upon  introducing  the  allegation  of  the  retention  or  act  on  the 
part  of  the  other  party  preventing  the  j)r()(luction  of  the  document,  if 
such  decisive  document  is  not  produced,  a  statement  must  be  made 
of  its  c(mtents  and  of  the  name  of  the  ])erson  who  should  deliver  up 
the  same.  (All  codes  of  civil  procedure  of  \'ene/uela  have  uniformly 
had  the  same  i)rovisions.) 

The  remedy  ¡igainst  the  judgment  of  a  court  having  locid  jurisdic- 
tion only  can  not  find  application  when  dealing  with  an  award  mudo 
by  an  international  court  specially  constituted  by  the  agreement  of 
the  high  contnicting  parties  to  settle  in  a  definite  lUiumer  the  claims  of 
the  subjects  of  one  country  ügüinst  ¡mot her.  claims  that  have  already 
l)een  prepared,  with  the  pioix-r  docunienis,  by  the  inteii'sted  parties. 


ADDITIONAL    OPINION    OF    VENEZUELAN    COMMISSIONER.       231 

and  which,  upon  being  iiled  before  the  arbitration  commission,  must  be 
submitted  with  iJl  the  necessary  evidence,  or  produce  such  evidence 
durinji  the  ])roceedino;s  or  hearinj^s  of  the  ehiini,  and  to  this  end  such 
courts  appoint  certain  fixed  dates  within  which  such  testimony  or 
evidence  must  be  duly  submitted. 

Article  3  of  the  convention  ijctween  France  and  Venezuela  of 
November  26,  18S5,  under  whose  provisions  the  mixed  commission  of 
1888-1890,  which  met  in  Caracas,  disallowed  the  claim  of  Tomás 
Massiani,  reads  as  follows: 

Claims  subsequent  to  1867-68  will  be  definitely  settled  by  a  mixed  commission  con- 
sisting of  one  member  for  each  part. 

As  soon  as  the  work  of  the  commission  ends,  and  within  three  months  following  its  adjourn- 
ment, the  Government  of  Venezuela  shall  issue  a  sufficient  number  of  new  bonds  to  equal 
the  amount  of  the  indemnities  awarded,  drawing  the  same  amount  of  interest  (3  per  cent) 
from  date  of  issue.  Said  bonds  shall  be  redeemed,  when  the  holders  desire  it.  at  the  same 
time  as  the  original  bonds,  and  in  all  cases  in  accordance  with  the  prescriptions  of  Article 
II  of  this  convention. 

It  appears  from  even  a  cursory  glance  at  the  foregoing  article  that 
the  intention  of  the  liigh  contracting  parties  was  that  the  claims  sub- 
sequent to  1867-68  should  be  definitely  settled  by  a  mixed  commis- 
sion, and  the  bond  issue  to  be  made  by  the  Government  of  Venezuela 
to  meet  such  obligation  was  limited  to  the  amount  that  said  commis- 
sion should  award  the  claimants. 

It  is  a  well-established  principle,  admitted  in  all  legislation,  and 
peculiarly  and  more  forcibly  applicable  to  the  awards  of  arbitration 
courts  created  solely  for  the  purpose  of  deciding  definitely  the  settle- 
ment of  pending  questions  or  claims,  that  the  authority  of  the  res 
judicata  applies  in  the  first  instance  to  that  which  is  the  object  of  the 
claim,  when  a  judgment  has  been  passed  upon  the  essential  points  of 
such  claim. 

It  is  therefore  evident  that  this  commission  can  not  assume  author- 
ity to  review  the  award  or  sentence  passed  by  the  mixed  commission 
of  1888-1890  upon  the  claims  of  Tomás  Massiani,  wherein  the  claim 
against  the  Venezuelan  Government  for  301,784.96  bolivars  was 
rejected  because  the  liability  had  not  been  sufficiently  established,  and 
that  same  claim  is  the  object  of  the  present  action  of  the  heirs  of  Tomás 
Massiani.  Under  such  circumstances  the  claim  must  be  entirely 
disallowed. 

In  regard  to  the  third  point  in  my  opinion,  that  the  document  pro- 
duced by  Felipe  A.  Massiani  is  not  a  decisive  document  to  establish  the 
existence  of  the  debt  or  liabilit}'  in  question,  it  suffices  to  compare  the 
two  balance  sheets  produced,  the  one  essentially  different  from  the 
other,  and  to  take  into  consideration  that  the  certificate  of  the  auditor 
of  the  central  bureau  of  accounts  {Contador  de  la  Sala  de  Centralización 
de  Cuentas)  at  the  bottom  of  the  balance  from  the  books  in  liis  archives 
can  only  be  construed  as  an  evidence  that  said  books  showed  that  on 


232  HEIRS    OF    MASSIANI    CASE. 

the  23d  of  June,  1869,  the  date  of  the  last  entry  in  the  account  cur- 
rent, there  was  a  credit  in  favor  of  Tomás  Massiani  and  against  the 
Venezuelan  Government  for  the  sum  of  270. SI 3.56  bolivars.  The 
certificate  in  (juestion  does  not  throw  any  light  on  further  transactions 
on  the  same  account  current  from  June  23,  1869,  until  August  12, 
1890,  date  of  the  certificate,  or  a  lapse  of  time  covering  a  period  of  over 
twenty-one  j^ears.  It  is  not  possible  to  admit  that  during  that  period 
the  account  was  inactive,  or  that  Tomás  Massiani  did  not  take  any 
steps  to  collect  the  balance  due  him,  or  that  he  did  not  get  auA'  voucher 
to  safeguard  his  rights.  Notice  should  be  taken  of  the  fact  that  such 
period  of  twenty-one  years — which  in  all  legislations  is  sufficient  to 
make  null  by  prescription  any  personal  liability  or  debt,  and  which  is 
more  than  sufficient  to  prescribe  a  debt  growing  out  of  a  balance  in  a 
current  account — lapsed  before  the  meeting  at  Caracas  of  the  mixed 
commission  of  1888-1890,  and  that  Felipe  Massiani  was  unable  to  pro- 
duce before  the  commission  sufficient  proof  to  establish  his  credit, 
which  should  have  appeared  from  his  own  books  and  papers.  If  such 
omissions  are  to  be  ascribed  to  negligence,  as  stated  by  the  French 
commissioner,  it  is  culpable  negligence  in  the  case  of  such  an  important 
amount,  subject,  according  to  the  codes  of  laws  of  all  countries,  to 
suffer  the  consequences  of  the  abandonment  of  property  or  private 
rights,  and  such  consequences  are  to  be  declared  by  the  courts  to  have 
lapsed  or  to  be  nonexistent.  Such  was  the  case  in  the  matter  of  the 
claim  of  Tomás  Massiani  before  the  mixed  commission  of  1888-1890, 
which  released  the  Venezuelan  Government  from  the  payment  of  the 
amount  claimed  and  definitely  settled  all  further  controversy  in  the 
matter. 

Before  coming  to  a  close  I  wish  to  rectify'  the  statement  made  by 
by  learned  colleague  in  his  opinion,  that  during  our  discussion  I  had 
stated  that  I  should  have  been  disposed  to  grant  an  indenmification 
equal  to  the  amount  shown  by  the  balance  sheet  of  1890,  if  the  parties 
concerned  had  entered  a  new  claim  based  on  the  refusal  of  the  Govern- 
ment to  deliver  the  document  wliich  had  been  asked  for.  There 
exists,  no  doubt,  a  misunderstanding  of  what  I  may  have  said  to  my 
learned  colleague  in  reference  to  the  faulty  presentation  of  the  claim, 
such  as  it  had  been  made,  as  I  must  have  limited  myself  to  saying  that 
a  new  claim  based  u})on  the  fact  of  the  refusal  of  the  Venezuelan  Gov- 
ernment to  deliver  a  decisive  document,  which,  it  could  be  established, 
was  deliberately  withJield  from  a  creditor,  might  have  been  admissible 
on  the  part  of  the  Massiani  heirs,  putting  aside  the  question  of  nation- 
ality, and  in  that  case  such  claim  might  have  been  for  an  indemnifica- 
tion for  damages,  as  in  such  form  it  did  nt)t  conflict  with  the  validity  of 
the  sentence  of  the  mixed  conunission  of  1SSS-IS90,  which  is  l)(>yt)nd 
our  commission.  Between  such  a  statement  made  during  our  discus- 
sion and  to  admit  as  established  the  allegations  of  the  claimants  and 
to  be  willing  to  allow  an  indenmity  there  is  a  remarkable  dille reuce. 


ADDITIONAL    OPINION    OF   FRENCH    COMMISSIONER.  233 

I  therefore  maintain  in  all  its  ])()ints  my  opinion  that  this  commis- 
sion has  no  jurisdiction  to  hear  the  claim  of  Felipe  A.  Massiani  entered 
in  his  own  behalf  and  as  the  rcjiresentative  of  his  brothers  and  sisters, 
because  they  are  all  Venezuelan  citizens,  and,  in  the  second  place, 
because  there  is  a  condition  of  res  judicata  as  regards  the  object  of  the 
claim  in  that  portion  admitted  by  the  French  commissioner,  and  that 
the  document  on  which  the  claim  is  based  lacks  the  necessary  force  to 
establish  a  decisive  proof,  and  for  this  reason  it  must  be  rejected  on  its 
merits. 

NoRTHFiELD,  Vt.,  February  9,  1905. 


ADDITIONAL  OPINION  OF  THE  FRENCH  COMMISSIONER. 

After  having  read  the  additional  memoir  presented  by  my  honorable 
colleague  I  can  only  maintain  the  conclusions  of  the  prior  memoir. 
To  reply,  it  would  be  necessary  for  me  to  reproduce  the  explanation 
which  I  have  already  given  superabundantly.  I  will  confine  myself, 
then,  to  a  few  observations. 

This  commission  seems  to  me  competent  to  pronounce  upon  the 
Massiani  afl'air  for  the  very  reason  of  the  French  nationality  of  all  the 
members  of  the  Massiani  family.  All  the  Massianis  are  incontestably 
French;  it  would  be  then  contrary  to  the  protocol  of  February  19, 
1902,  which  speaks  of  all  the  claims  presented  by  Frenchmen,  to 
refuse  them  the  benefit  of  this  exceptional  jurisdiction  opened  by  the 
very  protocol  to  all  those  who  are  French,  without  there  being  need  of 
examining  if  they  enjoyed  concurrently  another  nationality. 

My  colleague  tries  to  combat  my  opinion,  based  upon  the  strict  text 
of  the  protocol  by  a  great  number  of  citations  of  authors  and  of 
precedents.  I  wall  content  myself  by  remarking  to  the  umpire  that 
the  precedents  of  international  law  have  no  value  except  in  so  far  as 
has  been  demonstrated  by  a  parallel  exposé  of  the  facts  that  the  cases 
are  identical.  I  have,  then,  judged  it  useless  to  refer  to  treatises  of 
international  law  with  a  view  of  looking  for  precedents  favorable  to 
my  argument,  which  I  should  have  been  able  without  doubt  to  find  in 
as  large  numbers  as  has  my  colleague.  I  have  considered  it  suilicient 
to  produce  one  precedent,  the  value  of  which  is  singular  and  incom- 
parable, since  the  persons  considered  are  exactly  the  same,  and  I  call 
the  attention  of  the  honorable  Mr.  Plumley  to  the  grave  inconven- 
iences which  would  result  from  varying  the  jurisprudence  in  like  con- 
ditions. There  would  be  reason  to  deprive  the  arbitral  decisions, 
which  one  might  tax  with  a  lack  of  seriousness  and  inconsistency,  of 
all  their  authority.  This  precedent  has  consequently  disturbed  my 
honorable  colleague,  since  he  has  thought  he  ought  to  declare,  to 
lessen  its  value,  that  the  awards  rendered  by  Mr.  Filtz  had  not  the 
same  value  as  the  awards  by  the  other  arbitrators.     I  think  I  ought 


234  HKIRS    i)V   MASSIANI    CASE. 

to  protest  against  this  allegation.  Mr.  Filtz,  a  magistrate  Avho  has 
grown  gray  in  the  service,  has  shown  himself  a  perfect  arbitrator, 
having,  as  he  claims,  for  the  only  rules  of  conduct  good  sense,  ec|uity, 
and  the  protocol. 

The  awards  rendered  by  him  are  unattackable  and  have  the  same 
authority  as  every  otlior  arbitral  sentence:  they  have  a  greater  author- 
ity, perhaps,  here  since  they  have  been  rendered  in  favor  of  the  same 
persons  with  whom  we  are  concerned.  But  since  Doctor  Paúl 
attaches  a  particular  importance  to  precedents  and  thinks  that  one 
just  cause  does  not  defend  itself  sulliciently  b}'  its  exposé  alone,  I  pre- 
sent another,  whose  authority  I  think  he  will  not  contest,  since  it  has 
been  established  by  himself.  In  the  course  of  the  sitting  of  August  ft. 
1903,  of  the  commission  of  which  we  both  had  the  honor  to  join,  and 
of  which  the  present  commission  is  but  the  natural  conclusion,  we  ren- 
dered the  following  sentence  : 

There  is  accorded  Mr.  Charles  Daniel  Piton,  and  to  the  Misses  Emilie  Alexandrine  and 
Isabelle  Eugénie  Piton,  the  sum  of  228,714.64  bolivars. 

But  I  will  remark  to  the  umpire  that  Mr.  and  Mrs.  Piton  claimed 
this  svun  on  the  part  of  their  maternal  grandfather  because  of  a  con- 
tract of  the  date  of  July  28,  1856,  and  a  ministerial  decision  of  January 
7,  1868.  This  grandfather,  Mr.  Lemoine,  a  Frenchman  by  birth,  had 
been  dead  for  many  years  when  his  grandchildren,  in  1903,  presented 
their  claim  as  heirs,  but  these  three  grandchildren — all  three  born  in 
Venezuela  of  a  Venezuelan  mother — like  the  Massiani  heirs,  were 
all  three  Venezuelans  by  the  Venezuelan  law.  Why  then  refuse  to 
the  Massianis  that  which  has  been  accorded  to  the  Pitons? 

The  umpire  will  kindly  note,  also,  that  not  only  from  the  point  of 
view  of  nationality,  but  also  from  the  point  of  view  of  the  date,  the 
Piton  claim  is  like  the  Massiani  claim.  So  far  as  concerns  the  plea  t)f 
res  judicata  raised  by  my  honorable  colleague,  I  am  content  to  recall 
to  the  umpire  that  the  arbitrators  of  1890  were  not  able  to  take  it 
into  consideration,  since  the  interested  parties  were  imable  to  obtain 
until  thirteen  years  afterward,  by  surprise,  without  doubt,  the  docu- 
ment which  permitted  them  to  make  their  claim  of  value.  They 
had  no  appeal  from  the  mixed  commission  of  1890  to  the  ^Vnezuelan 
tribunals,  wliicli  would  not  have  had  jurisdiction,  but  to  this  commis- 
sion, appointed  to  examine  all  the  claims  of  Frenchmen,  of  whatever 
nature  they  might  be.  It  is  not  ])()ssiblc  to  forget  that  tlu^  \'enezuelan 
Government  had  been  put  upon  notice  by  the  interested  parties  to 
submit  at  the  right  time  the  said  document  and  that  it  has  not  doiu»  so. 
Is  not  this  j)<)int  a  denial  of  justice  of  the  first  classa 

Finally,  I  consider  that  it  is  superfluous  to  discuss  the  \;due  of  the 
dorcument  which  constitutes  the  acknowledgment  of  th(>  (l(>bt.  It  is 
suilicient  to  read  it  to  be  convinced. 

NoRTiiFiELD,  Fehruari/  11,  í¡)OÍ). 


OPINION    OF    THE    UMPIRE.  235 

OPINION  OF  THE  UMPIRE. 

Thomas  Massiani  and  Benito  Massiani.  l)oth  Frenchmen,  married, 
and  residing  in  Carúpano,  State  of  Sucre,  in  the  United  States  of 
Venezuela,  formed  a  copartnership  in  trade  at  said  Carúpano  under 
the  name  and  style  of  Massiani  Brothers,  on  the  14th  day  of  June, 
1864,  which  continued  until  its  dissolution  by  mutual  consent  on  the 
17th  of  May,  1868,  which  dissolution  of  partnership  was  by  lawful 
procedure.  Thomas  Massiani  remained  in  charge  of  the  business, 
assuming  all  partnership  liabilities  and  enjoying  all  partnership  assets, 
agreeing  to  pay  to  Benito  Massiani  for  liis  share  of  the  company  assets 
82,000  pesos,  to  be  paid  in  the  city  of  Paris  witliin  the  term  of  five 
years  in  five  annual  equal  parts,  with  interest  annually  at  5  per  cent. 

Prior  to  the  year  1870  Benito  Massiani  died.  His  widow  and  chil- 
dren, resident  in  Paris,  received  of  Thomas  ^lassiani  the  sum  of 
230,000  francs,  being  the  sum  due  for  the  remaining  interest  of  the 
estate  of  the  deceased  Benito  in  the  aforesaid  assets'.  This  payment 
is  shown  by  a  receipt  signed  by  the  widow,  Mercedes  Cova,  at  Paris, 
in  France,  on  September  21,  1871;  also  signed  by  Emilio  Massiani, 
son  of  Benito,  who  had  attained  his  majority. 

During  the  years  1863  to  1869,  both  inclusive,  and  as  well  in  the 
years  1870,  1871,  1872,  1879,  1885,  1892,  and  1899,  the  Government 
of  Venezuela  enjoyed  loans  and  payments  on  requisition  or  otherwise 
from  the  said  Massiani  Brothers,  the  said  Thomas  ^lassiani,  and  the 
Thomas  Massiani  Company,  wliich  latter  existed  part  of  the  period 
covered  by  the  years  aforesaid. 

The  principal  sum  in  issue,  and  in  fact  the  only  sum,  by  the  hold- 
ing of  the  honorable  commissioner  for  France,  now  in  issue,  accrued 
between  the  years  1863  and  1869,  both  inclusive,  and  amounted  to 
the  sum  of  270,813.56  bolivars,  this  sum  being  for  supplies  and  cash 
furnished  to  the  maritime  custom-house  of  Carúpano  and  to  certain 
chiefs  of  the  national  forces,  both  having  authority  to  pledge  the  credit 
of  the  Government. 

Doctor  Urbaneja,  attorney  for  Thomas  Massiani,  in  1890,  July  19, 
stated  to  the  honorable  mixed  commission  of  France  and  Venezuela, 
then  sitting  in  Caracas,  that  the  sum  due  to  Thomas  Massiani  at  that 
time  was  301,784.96  bolivars. 

The  sum  presented,  in  fact,  to  the  mixed  commission  of  1888-1890 
was  351,449.80  bolivars,  and  on  the  7th  of  July,  1890,  the  said  com- 
mission awarded  to  Thomas  Massiani  49,666.84  bolivars,  and  at  the 
same  sitting  the  said  commission  disallowed  the  claim  for  301,784.96 
bolivars  for  the  reason  that  the  claimant  had  not  produced  a  sufficient 
document  in  support  of  his  claim.  The  sum  allowed  by  the  commis- 
sion was  one  recognized  as  existing  b}'  the  Government  of  ^'enezuela, 
and  there  was  then  pending  with  the  minister  of  hacienda  that  por- 
tion of  the  claim  which  was  disallowed  bv  that  commission.     The 


236  HEIRS    OF    MASSIANI    CASE, 

minister  of  hacienda  was  asked  for  the  dossier  containing:  the  necessary 
proofs  and  for  his  authentication  thereof,  Init  on  a  too  casual  exami- 
nation, he  had  reported  to  that  commission  that  there  were  no  such 
papers  in  his  olhce.  It  was  on  receiving  this  information  that  the 
commission  dismissed  the  case.  Doctor  Urbaneja,  attorney  aforesaid, 
learnin<i  of  this  statement  of  the  minister  of  hacienchi  and  of  the  action 
of  the  commission  on  the  claim,  asked  the  connnission  to  delay  their 
final  action  on  the  case  and  repaired  directly  to  the  office  of  the  haci- 
enda and  insisted  upon  further  examination,  which  was  had,  and  in 
the  archives  the  accounts  were  found.  Doctor  Urhaneja  further 
insisted  that  the  minister  of  hacienda  correct  his  erroneous  statement 
to  the  commission  and  that  he  also  send  the  accounts,  duly  liipiidated, 
to  the  minister  of  foreign  affairs  as  the  competent  medium  for  their 
transmission  to  the  commission.  Doctor  Urbaneja  notified  the  com- 
mission of  these  supplementary  facts  and  re(|uested  it  to  ask  the  señor 
minister  for  foreign  afl'airs  to  produce  the  papers  then  in  his  possession. 
He  urged  a  reconsideration  by  the  commission  of  the  case  and  gave 
cogent  reasons  why  it  should  thus  act.  Tliis  request  to  reopen  the 
case  and  receive  this  new  proof  was  made  July  17,  1890. 

The  important  papers,  properly  certified  to,  were  sent  by  the  min- 
ister of  hacienda  to  the  minister  of  foreign  affairs,  but  they  did  not 
leave  the  foreign  office,  were  not  presented  or  considered  l)y  the  mixed 
commission,  and  there  was  no  reconsideration  of  the  case,  and  the 
commission  dissolved  without  changing  its  first  action.  During  all 
of  the  time  of  its  sitting  the  accounts  required  were  in  the  archives 
of  the  minister  of  hacienda  and  under  the  control  of  the  ministry  of 
Venezuela,  and  there  was  no  reason  why  the}"  were  not  produced ,  except 
that  the  examination  made  by  the  minister  had  been  too  casual  to 
develop  the  accounts  as  being  in  the  archives. 

These  papers  were  not,  in  fact,  passed  by  the  minister  of  hacienda 
to  the  foreign  oifice  until  August  23,  1890. 

In  accordance  with  the  arrangement  with  Massiani  Brothers  and 
Thomas  Massiani,  made  by  the  maritime  custom-house  of  C'ariipano, 
these  credits  were  to  be  reduced  and  canceled  by  an  allowance  on  the 
import  and  export  duties  otherwise  payable  to  the  custom-house  by 
Massiani  Brothers  and  Thomas  Massiani,  and  this  plan  of  payment 
existed  until  October  22,  1872,  when  the  minister  of  hacienda  passed 
a  resolution  suspending  the  payment  of  all  obligations  based  upon  the 
custom-houses  of  the  east,  including  the  custom-house  of  Carú]>ano. 
Up  to  that  date  Massiani  had  been  receiving  pay  in  small  amounts 
from  time  to  time. 

When  the  society  of  Massiani  &  Co.  was  organized  at  Carúi)ano 
the  umpire  has  not  learned,  but  on  May  8,  189.3,  this  company,  com- 
posed of  Thomas  Massiani  and  his  three  sons,  Luis  Antonio,  Antonio 
José,  anil  Felipe  Antonio,  was  dissolved  by  mutual  consent  uniler 


OPINIOlSr    OF    THE    UxMPIRE.  237 

lawful  proceedings  had,  and  the  Inisinoss  continued  under  the  mer- 
cantile name  of  Thomas  Massiani. 

On  Octo})er  9,  1901,  the  said  Thomas  Massiani  deceased  at  Carii- 
pano,  leaving  a  widow.  Carmen  de  Silva,  the  two  sons,  Felipe  A.  and 
Luis  A.,  his  two  married  daughters,  Ascension  N.  Phelan  and  Nuncia 
de  Orsini,  and  the  widow  and  children  of  Antonio  José.  Antonio 
José  died  March  12,   1900. 

On  the  30th  day  of  May,  1903,  Luis  Antonio,  in  his  own  right, 
Augustine  Orsini,  in  representation  of  his  wife.  Señora  Nuncia  Mas- 
siani, Isabel  Paván  de  Massiani,  widow  of  Antonio  José,  proceeding 
in  representation  of  her  minor  cliildren,  Thomas,  Maria,  Mercedes, 
Antonio  José,  Gloria  Margarita,  Luis  Enri(|ue,  and  Carmen  de  Lourdes, 
acting  with  Señora  Carmen  de  Silva  Massiani,  widow  of  the  late 
Thomas  Massiani,  and  Felipe  Antonio  ^lassiani,  gave  full  power  of 
attorney  to  D-r.  Carlos  F.  Grisanti  against  the  respondent  Govern- 
ment in  the  matter  of  the  claim.  The  widow  of  Thomas,  Carmen  de 
Silva  Massiani,  at  this  time  resitled  in  Port  of  Spain,  Trinidad. 

The  amount  claimed  of  the  respondent  Government  was  301,7<S4.96 
bolivars,  and  to  this  it  is  claimetl  should  be  added  39,9.^12.40  ))olivars, 
also  35,786  bolivars,  made  up  of  3,200  bolivars,  for  cash  and  supplies 
furnished  in  1SS5  to  the  titular  Government,  14,136  bolivars  to  the 
successful  Legalista  revolution  of  1S92,  and  18,400  bolivars  furnished 
in  1899  to  the  successful  Restaurador  revolution. 

On  May  27,  1903,  the  certified  copy  of  liquidation  prayed  for  by 
Thomas  Massiani  May  8,  1890,  and  passed  into  the  hands  of  the 
minister  of  foreign  affairs  by  the  minister  of  hacienda  on  the  23d  of 
August,  1890,  was  furnished  to  Felipe  A.  Massiani  and  ])y  him  was 
presented  to  the  commission  sitting  in  Caracas  in  1903. 

But  there  were  certain  errors  in  the  dossier  as  then  presented  to 
Felipe,  as  he  claimed,  and  he  presented  a  corrected  copy  to  the  citizen 
minister  of  hacienda  on  the  30th  day  of  May,  1903,  calling  attention 
to  the  errors  which  were  marked  in  red  ink  on  the  copy  accompanying 
his  connu imication,  and  he  prayed  that  a  certified  copy,  corrected 
in  accordance  with  his  suggestions,  be  returned  to  him.  This  re(juest 
was  referred  by  the  minister  of  hacienda  to  the  office  of  foreign  affairs 
for  the  rectification  desired. 

It  is  claimed  by  Felipe  Massiani,  and  is  not  (luestitHied,  that  Thomas 
Massiani  and  his  wife  were  married  without  any  special  agreement 
having  been  made  as  to  the  management  of  their  property,  and  that 
in  conse(|uence  there  existed  between  them  a  conjugal  society  which 
makes  common  by  halves  to  each  the  gains  or  benefits  obtained 
during  marriage.     He  refers  for  his  authority  to  article  1369"  of  the 

a  Art.  1369.  Entre  marido  y  mujer,  si  no  hubiere  convención  en  contrario,  existe  la 
sociedad  conyugal,  cuyo  efecto  es  hacer  comunes  de  ambos  por  mitad  las  ganancias  ó 
beneficios  obtenidos  durante  el  mat riinoiiit),  según  lo  establecido  en  el  párrafo  S**  de  esta 
sección. 


238  HEIRS    OF    MASSIANI    CASE. 

civil  code  of  Venezuela,  in  force  May  IS,  1003,  which  is  said  to  corre- 
spond with  1393  of  the  French  civil  code.  The  claim  before  the 
present  commission  is  property  gains  and  is  controlled  by  that  law. 
Under  these  circumstances  the  widow  is  entitled  by  the  Venezuelan 
law  to  six-twelfths  of  Thomas  Massiani's  estate  as  her  half  thereof 
and  to  one-sixth  part  of  the  remainder  of  his  estate  by  inlieritance,  she 
taking  eijually  with  each  of  the  five  children.  lie  refers  to  articles 
717  and  718  of  the  Venezuelan  code  for  his  authority. 

The  marriage  of  Thomas  Massiani  and  of  Carmen  de  Silva  occurred 
Januarys,  1855,  as  is  duly  estaljlished  by  authenticated  registration 
of  the  same. 

By  the  duly  authenticated  registration  of  births  at  said  Carúpano 
there  were  proven  to  be  born  to  Thomas  Massiani  and  Carmen  de 
Silva  as  the  fruit  of  such  marriage  Felipe  Antonio  in  1855;  Ascensicm 
del  Carmen,  1859;  Luis  Antonio,  1866;  Maria  de  La  Mercedes  in  1S71, 
and  of  Antonio  José  there  is  no  record  proof.  Antonio  José  Massiani 
and  Isabel  Pavan  were  married  April  23,  1883,  and  the  birth  and  date 
of  birth  of  each  of  their  children  named  in  the  power  of  attorney  to 
Doctor  Grisanti  are  fulh'  established  by  lawful  eviilence. 

Señora  Carmen  de  Silva,  widow  of  Thomas  Massiani,  Avas  of  Vene- 
zuelan parentage,  and  up  to  the  date  of  her  marriage  with  Thomas 
she  was  a  Venezuelan.  They  ever  thereafterwards  resided  in  Vene- 
zuela; their  children  were  all  born  to  them  there  and  have  continued 
to  reside  in  Venezuela  and  were  so  residing  at  the  time  of  the  presen- 
tation of  this  claim  to  the  mixed  commission  at  Caracas  in  1903. 

It  is  asserted  by  Felipe  that  this  claim  against  the  respondent  Gov- 
ernment is  a  part  of  the  ])atrimony  of  Thomas  and  that  the  same  was 
transmitted  at  his  death  to  his  universal  successors,  his  widow  and 
children. 

It  is  agreed  that  liy  the  law  of  both  countries  her  marriage  with 
Thomas  gave  her  French  nationality,  which  continued  until  the  death 
of  her  husband.  At  his  death,  by  French  law,  the  widow  retained 
her  French  nationality,  and  by  the  law  of  Venezuela  she  was  restored 
to  her  former  estate  as  a  Venezuelan. 

The  claimants  insist  that,  ui)on  the  facts  existing  in  this  case,  to 
deny  them  a  right  of  recovery  })efore  this  tribimal  is  eipiivalent  to 
saying  that  the  indebtedness  of  Venezuela  to  Thomas  and  his  suc- 
cessors was  extinguished  by  his  death. 

In  presenting  this  claim  to  the  legation  of  F'rance,  at  Caracas,  Doctor 
Grisanti  makes  the  claim  that  the  adjudication  of  the  mixeil  connnis- 
sion  in  1890,  dismissing  this  claim,  was  passed  on  an  error  of  fact,  which 
error  of  fact  arose  through  the  statements  of  the  respondent  Govern- 
ment to  the  said  connnission,  and  through  its  retention  of  the  accounts 
which  it  then  disclaimed  to  i)()ssess.  Ile  cites  article  695  of  the  Code 
of  Civil  Procedure  No.  4. 


OPINION    OK    TIIP]    UMPIRE.  239 

Tlie  retention  in  possession  of  the  opposini^  party  of  cU^'isixc  (locunients  in  fii\(jr  of  tlio 
action  or  exception  of  the  claimant,  or  uct  of  tlie  opposing  party  wliicli  lias  inipedcrl  llu^ 
opportnne  presentation  of  such  decisive  ilocunient.a 

This,  as  he  claims,  is  cause  for  the  invaUdatiou  of  the  jik lament 
which  foHows  such  a  situation. 

The  claim,  1(S,400  bolivars,  furnished  in  1X99  has  been  presented 
before  the  mixed  commission  sitting;  at  Caracas  and  established  under 
the  AVashinji^ton  protocol  of  February  27,  19()-'f,  anil  is  no  longer-  a  (it 
subje(  t  for  the  consideration  of  this  tribunal. 

The  sum  of  14,136  bolivars  paJd  on  account  of  the  ljeo;alista  revolu- 
tion of  1892  was  cared  for  by  the  round  sum  of  ]00,0(){),0()()  bolivars, 
which  was  accorded  to  the  Government  of  France  b}"  A'enezuela  in 
bonds  of  dij)lomatic  debts  for  the  "insurrection  events"  of  1892,  as  it 
was  provided  might  be  done  in  article  1  of  the  Paris  protocol  of  1902. 

The  claim  for  3,200  bolivars  arising  through  requisition  of  the  titular 
Government  in  1885,  and  approved  l)y  certain  generals  having  author- 
ity on  June  26tli  of  that  year,  was  disallowed  by  the  mutual  agreement 
of  the  honorable  commissioners  at  the  sitting  in  Caracas  for  reasons 
to  them  sullicient  and  satisfactory. 

This  cause  came  before  the  honorable  commissioners  gitting  at 
Caracas  as  a  claim  for  341,737.36  bolivars  as  the  principal  sum  against 
the  respondent  Government  and  351,003.12  bolivars  as  accrued  inter- 
est on  the  same  to  June  30,  1 903.  For  reasons  which  were  satisfactory 
and  controlling  to  the  honorable  commissioner  for  France  he  dismisses 
the  claim  for  30,971.31  bolivars,  which  the  immediate  representatives 
of  the  claimants  insist  were  errors  of  omission  and  should  have  been 
added  to  the  certified  allowance  by  the  Government  of  270,813.65 
bolivars^  as  he  also  dismisses  the  claim  for  the  additional  sum  of 
39,952.40  bolivars,  which  sum  was  not  presented  to  the  mixed  com- 
mission of  1888-1890,  although  existing  at  that  time  and  capable,  as  is 
insisted  by  the  claimants,  of  being  substantiated  by  receipts  analogous 
to  those  passed  upon  by  the  Venezuelan  Government  ;  so  by  this  hold- 
ing of  the  honorable  commissioner  for  France  the  claim  is  stripped  of 
all  accessories  and  stands  at  270,813.65  bolivars,  as  acknowledged  by 
the  auditors  of  the  Venezuelan  treasury. 

The  honorable  commissioner  for  France,  governed  by  the  reasons 
which  he  names,  is  of  the  opinion  that  there  should  be  no  allowance 
for  interest  on  this  sum,  and  that  the  only  claim  whic  h  he  rerognizes 
as  a  rightful  demand  upon  Venezuela  is  the  said  sum  of  270,813.65 
bolivars,  without  interest. 

The  honorable  commissioner  for  Venezuela  rejects  the  claim  in  its 
entirety,      (a)  Because  the  claim  is  res  judicata,  having  been  refused 

a  4a.  Retención  en  poder  de  la  parte  contraria  de  documento  decisivo  en  favor  de  la 
acción  ó  excepción  del  reclamante,  ó  acto  de  la  parte  contraria  que  pidió  la  presentación 
oportuna  de  tal  documento  decisivo. 


240  HEIRS    OF    MASSTANI    CASE. 

for  want  of  suificient  proof  to  sustain  it;  that  the  claimant's  position, 
lioklini;  tliat  the  decision  of  tlie  said  mixed  commission  ou^ht  to  be 
invah(hito(l  Ixnauso  of  the  retention  in  its  ])()ssession  by  the  Venezuela 
Government  of  the  dossier  ai)i)rove(l  l)y  its  ollicers  and  throujih  its 
statement  to  tlie  lionorable  commissioners  of  1890  that  it  held  no  such 
document,  is  not  well  taken  and  can  not  be  sustained  for  reasons  whidi 
are  in  part  as  follows:  That  the  certified  document  produced  is  not  a 
decisive  document  showing;  the  real  relation  of  Venezuela  to  the 
claimants,  siiu  e  it  only  purports  to  establisli  by  the  certificate  of  the 
general  auditor's  ollice  that  accordin^j;  to  the  books  <  f  the  custom- 
house at  Cariipano  it  appeared  that  on  the  23d  of  June,  1869,  there 
was  a  balauie  in  favor  of  Thomas  Massiani  of  the  certain  amount 
named;  and  that  the  production  of  this  document  before  this  connnis- 
sion  is  inefficient  to  overcome  the  decision  of  the  mixed  commission 
of  1890,  when  especially  there  are  to  be  considered  all  of  the  presumj)- 
tions  which  arise  to  meet  the  document,  which  are  su^i^tiested  some- 
what in  detail  by  the  honorable  commissioner  for  Venezuela;  (b)  That 
this  commission  has  no  jurisdiction  over  this  claim,  because  neither  of 
the  successors  of  Thomas  Massiani  is  French  by  Venezuelan  law,  and 
hence,  since  this  commission  was  formed  only  to  settle  claims  of 
Frenchmen,  it  lias  no  jurisdiction  of  a  claim  which  is  solely  for 
Venezuelans. 

The  honorable  commissioner  for  France  regards  the  position  of  res 
judicata  as  not  well  taken  for  the  reasons  stated  by  him  in  detail;  and 
he  considers  the  jurisdiction  of  this  commission  as  un(iuestioiiable, 
holding  that  the  widow  of  Thomas  ^lassiani  and  his  children  and 
representatives  being  French,  under  French  law,  they  are  those  for 
whom  France  intervened  by  the  protocol  of  February  19,  1902.  He 
regards  the  document  in  question  as  undeniably  decisive  and  asserts 
that  if  payments  had  since  been  made  it  would  have  been  very  easy  to 
prove  it  by  books  and  papers.  lie  considers  that  Thomas  Massiani 
having  birth  in  France  of  French  parents  always  enjoyed  incontest- 
able and  exclusive  French  nationality;  that  the  claim  in  (piestion  had 
birth  during  his  life,  and  it  is  consecjuently  the  right  of  a  French  citizen 
who  has  been  injured  in  his  property,  and  hence  this  commission, 
which  is  to  consider  the  demands  of  indemnities  by  Frenchmen,  is 
wholly  C(mipetent  to  consider  and  determine  it.  He  is  of  the  opinion 
that  the  nationality  of  the  heirs  should  be  put  out  of  the  case,  as  is 
asserted  by  Mr.  Filtz  under  the  protocol  of  Washington. 

The  honorable  c  ommi.ssioner  for  France  is  also  of  the  oj)inion  that,  if 
the  nationality  of  the  heirs  is  to  be  considered,  this  commission  is  still 
competent.  lie  reasons  that  the  heirs  enjoyed  two  nationalities — 
French  by  French  law,  Venezuelan  by  A'enezueian  law  -  and  tliat  the 
proto(  ol  in  pi'oviding  for  \\\c  consideration  of  demands  for  indemnities 
presented    l)y    I^'r-cticlnncii    was    j)rovi(ling    for   claims    presented    by 


OPINION    OF    THE    UMPIRE.  241 

individuals  to  whom  the  French  Government  assured  its  protection 
because  they  were  recognized  by  the  French  law  as  Frenchmen.  It  is 
his  opinion  that  it  is  only  necessary  that  the  claimant  is  one  whom  the 
laws  of  France  recognize  as  French,  although  at  the  same  time  the  law 
of  Venezuela  makes  the  claimant  a  Venezuelan.  He  calls  to  his  sup- 
port in  this  opinion  the  peculiar  wording  of  the  Washington  protocols 
of  1903,  in  regard  to  local  legislation,  and  holds  that  the  meaning  and 
effect  of  the  language  of  those  protocols  are  to  exclude  from  the  con- 
sideration of  the  several  tribunals  constituted  thereunder  all  recogni- 
tion of  Venezuelan  law;  and  hence,  what  A'enezuela  recogniz(>s  in  the 
matter  of  citizenship  is  not  important  to  the  determination  of  this 
question. 

To  the  position  of  the  honorable  commissioner  for  Venezuela  that  one 
commission  has  not  authority  to  revise  the  proceedings  of  another,  he 
introduces  the  new  fact,  unknown  to  the  arbitrators  of  1890,  which  is 
the  fact  that  in  the  archives  of  the  Venezuelan  ministry  there  was  then 
an  approved  dossier  fully  supporting  the  claim  of  Thomas  Massiani, 
the  existence  of  which  the  Venezuelan  Government  had  denied,  and 
upon  which  denial  the  commission  had  dismissed  the  claim.  lie  also 
urges  that  this  commission  has  especial  power  to  examine  anew  the 
affair  submitted  to  the  mixed  commission  of  1888-1890,  because  the 
protocol  gives  it  jurisdiction  to  pass  upon  all  the  claims  of  Frenchmen, 
and  since  the  sentence  anterior  was  caused  by  a  reason  entirely  dif- 
ferent from  what  in  fact  existed  ;  and  that  in  equity  there  being  incon- 
testable evidence  that  the  credit  in  fact  existed  at  the  time  of  its 
rejection,  which  fact  was  retained  from  the  consideration  of  the 
previous  commission  through  the  action  or  nonac  tion  of  the  Venezue- 
lan Government,  the  heirs  of  Massiani  should  receive  the  sum  which 
the  Government  of  Venezuela  has  recognized  to  be  due. 

The  honorable  commissioners  having  disagreed  as  hereinbefore 
stated  and  having  failed  to  reconcile  their  disagreements,  they  join  to 
send  the  claim  to  the  umpire  for  his  determination  and  award. 

An  indebtedness  of  the  respondent  Government  to  the  late  Thomas 
Massiani  in  his  lifetime  is,  without  doubt,  a  part  of  the  patrimcmy 
which  descends  to  his  widow  and  children  to  be  distributed  in  accord- 
ance with  the  laws  of  Venezuela. 

But  the  important  question  to  be  determined  is,  has  this  tribunal 
jurisdiction  over  this  claim?  Neither  the  widow  nor  the  children  are 
of  French  nationality  as  recognized  by  the  laws  of  Venezuela.  The 
widow  was  born  in  Venezuela,  achieved  French  nationality  by  the  laws 
of  both  countries  when  she  married  Thomas  Massiani,  but  by  the  laws 
of  Venezuela  was  restored  to  her  quality  of  a  Venezuelan  citizen  at  his 
death.  During  their  married  life  they  remained  in  Venezuela;  they 
were  there  domiciled  when  he  died.  It  always  has  been  her  domicile. 
It  is  therefore  her  nationality,  since  such  is  the  law  of  her  domicile, 
S.  Doc.  533,  59—1 16 


242  HEIRS    OF   MASSIANI    CASE, 

which  law  prevails  when  there  is  a  conflict  as  held  by  the  umpire  in  the 
claim  of  Maninat  heirs"  before  this  same  tri])unal.  Tlu-  children  of 
this  marriage  were  all  born  in  Venezuela.  By  the  voluntary  action  of 
the  father  this  was  their  birthi)la(e.  It  has  always  been  their  domi- 
cile, first  through  the  paternal  selection  and  later  through  their  own 
choice.  Hence,  governed  by  the  laws  of  their  domicile,  they  are 
Venezuelans. 

Thomas  Massiani  deceased  prior  to  the  convention  of  February  19, 
1902.  Therefore  he  could  not  have  been  considered  as  a  possible 
claimant  bv  either  of  the  high  contracting  j)arties  at  the  time  of  tliat 
convention.  His  widow  and  children  being  ^>nezuelans  in  the  con- 
templation of  the  respondent  Government,  their  right  to  the  interven- 
tion of  France  was  not  agreed  to  by  Venezuela  under  the  terms  of  the 
protocol  as  held  by  the  umpire  in  the  claim  of  the  Maninat  heirs.  His 
reasons  for  his  opinion  in  that  regard  and  the  autliorities  sustaining 
him  in  his  reasoning  and  in  his  opinion  having  been  therein  stated  and 
adduced,  they  need  no  further  amplification  here. 

This  case  is  on  all  fours  with  that  of  the  estate  of  Stevenson,  decided 
by  the  umpire  in  the  British-Venezuelan  mixed  commission  of  1 903,  and 
reported  in  Ralston  and  Doyle's  Venezuelan  Arbitrations  of  1903,  page 
438.  The  reasons  there  given  and  the  authorities  there  accumulated 
are  directly  in  point  in  this  case,  and  he  respectfully  refers  tlie  ])arties 
interested  for  further  elucidation  of  these  points  to  the  opinion  tliere 
found.  His  opinion  then  expressed  is  only  confirmed  and  established 
by  his  subsequent  study,  and  his  reasons  there  given  are  to  him  as 
convincing  and  controlling  now  as  then. 

The  indebtedness  may  indeed  remain,  but  the  form  of  action  and 
the  forum  are  changed.  The  forum  to  which  they  nuist  now  repair  is 
the  forum  of  the  country  Thomas  Massiani  chose  for  his  domicile,  for 
his  marriage,  and  for  the  birthplace  of  his  children  ;  there  death  over- 
took him  and  liis  ashes  are  there. 

He  voluntarily  selected  Venezuela  as  the  country  in  which  tt)  make 
his  fortune  and  to  gain  the  properties  for  which  the  respondent  Gov- 
ernment is  now  the  alleged  lawful  debtor  to  his  estate.  His  life  in 
that  country  was  voluntary,  free,  a  matter  of  choice.  After  weighing 
probabilities  and  anticipating  results  he  remained.  His  children  have 
attained  full  age  and  have  also  remained.  The  ties  of  race  on  the 
paternal  side  have  been  to  them  less  strong  than  the  ties  which  bound 
them  to  the  country  of  their  birth  and  the  land  of  their  maternal 
nationality.  They  have  for  their  recourse  the  forum  constituted  for 
Venezuelans.  They  have  all  the  rights,  opportimities,  and  privileges 
common  to  their  brethren  of  that  nation.  They  easily  could  have 
been  P>ench  had  they  preferred  life  in  France  to  life  in  Venezuela. 
Having  F'rench  paternity,  and  thereby  having  French  nationality  in 

«  Page  44. 


OPINION    OF    THE    UMPIRE.  243 

France,  they  needed  onlj^  to  be  domiciled  therein  to  have  a  nationahty 
which  all  the  world  must  maintain  to  be  French.  For  reasons  domi- 
nant with  them  they  lun^e  preferred  to  remain  in  Venezuela.  Its  laws 
and  its  courts  are  theirs.  These  they  may  invoke;  with  them  they 
must  be  content. 

The  umpire  recof^nizes  the  position  of  the  honorable  connnissioner 
for  France  that  the  laws  of  Venezuela  upon  the  question  of  nationality 
of  its  own  inhabitants  may  be  ij?nored  and  the  laws  of  France  be  made 
paramount.  He  is  also  not  unmindful  of  the  reference  made  by  the 
same  honorable  commissioner  to  the  provisions  of  the  protocols  drawn 
up  at  Washington  in  1903  in  their  allusion  to  the  effect  of  local  legis- 
lation. The  definition  of  that  i);:rticular  provision  in  those  protocols 
is  not  germane  to  tiny  inquiry  under  the  protocol  of  February  19,  1902, 
which  hi;  s  no  such  restrictive  clause  and  which  in  no  way  and  in  no 
part  suggests  that  each  coinitry  is  not  entitled  in  every  particular  to 
equal  place  before  the  international  tribunal  thus  constituted.  The 
umpire  has  already  held,  in  effect,  in  the  Maninat  case,"  that  to  be  sover- 
eign and  independent  each  country  must  be  master  of  its  internal 
policy  and  subject  neither  to  advice  nor  control  by  any  other  country 
nor  by  all  other  countries  in  respect  to  such  matters.  France  would 
not  brook  that  Venezuela  should  name  to  her  who  are  her  citizens 
within  her  domain;  she  nuist  be  content  to  ascribe  equal  privilege  of 
■selection  to  her  sister  Republic,  certainly  while  Venezuela  in  this 
regard  has  no  peculiar  or  offensive  laws,  but  rather  has  those  which 
accord  with  the  laws  of  nations  in  general. 

A  large  number  of  questions  naturally  arising  out  of  the  facts  which 
are  grou])ed  together  in  this  case  do  not  become  important  matters  of 
consideration,  since  in  the  opinion  of  the  umpire  the  claim  does  not 
come  within  the  provisions  of  the  protocol. 

This  claim  is  to  be  therefore  entered  dismissed  for  want  of  jurisdic- 
tion, but  clearly  and  distinctly  without  prejudice  to  the  rights  of  the 
claimants  elsewhere,  to  whom  is  especially  reserved  every  right  which 
would  have  ])een  theirs  had  this  claim  not  been  presented  before  this 
mixed  commission. 

NoRTiiFiELD,  July  31,  1905. 

«Page  44. 


COMPANY    GENERAL    OF    THE    ORINOCO.— No.  7." 


HEAD  NOTES. 

If  there  were  irregularities  in  the  procedure  of  the  respondent  government  in  its  suit  for 
rescission  in  the  matter  of  notice  to  the  defendant  company  therein,  these  weie  all 
cured  bj'  the  subsequent  appearance  of  its  attomej'  in  said  court  and  by  its  participa- 
tion in  the  subsequent  proceedings. 

«EXTRACT   FROM    THE    MINUTES   OF   THE    SESSION    OF    MAY    5,  1903. 

The  examination  of  tlie  claim  of  the  General  Company  of  the  Orinoco  wa.s  then  entered 
upon. 

Doctor  Paúl  read  the  memoir  which  he  drew  up  after  having  gained  a  knowledge  of  the 
dossier.  His  conclusion  is  that  the  claim  of  the  company  is  not  well  founded,  and  he  rejects 
it  absolutely. 

M.  de  Peretti  a.sks  his  colleague  to  let  him  take  tlie  memoir  to  .study  it  l)ef<>re  giving  his 
opinion.  Doctor  Paúl  agrees,  and  it  i.s  understood  that  the  French  arbitrator  will  give  his 
opinion  during  the  next  meeting. 

EXTRACT    FRO.M    THE    MIXITES    OF    THE    SESSIO.N    OF    .M.W    7,   1903. 

M.  de  Peretti  returns  to  his  colleague  the  memoir  which  Doctor  Paúl  kindly  let  him  take 
at  the  last  meeting.  He  declares  that,  after  ha%-ing  read  it  witii  the  interest  whidi  a  remark- 
able ai-gument  demands,  he  pei-sists  in  the  opinion  which  he  had  formed  in  studying  the 
dossier  of  the  claim  of  the  Company  General  of  the  Orinoco,  namely,  that  there  ought  to  he 
accorded  to  the  latter  an  indemnity  of  7,000.000  Iwlivare.  He  bases  his  judgment  upon  tlie 
fact  that  the  Venezuelan  Government  has  brought  in  its  defense  no  document,  no  proof  of 
a  nature  to  weaken  what  is  said  by  the  company. 

The  amount  claimed  by  the  company  amounted  to  7,610,098.02  bt)livai-s,  of  whitli 
5,616,098.62  Ijolivars  represent  money  expended  and  2,(XK),(MX)  l)()livars  benelits  not  realized. 

The  French  arbitrator  does  not  accord  at  all  the  second  of  these  sums,  and  of  the  iii-st  lie 
takes  out  540,000  bolivars.  The  company  claiming  upon  this  capital  an  interest  of  6  per 
cent,  while  the  commission  has  decided  that  it  would  reckon  interest  at  tlu»  rate  of  3  p?r 
cjnt,  it  is  to  be  remarked  that  the  company  having  paid  interest  at  6  per  cent  to  its  lenders 
and  holders  of  obligation,  there  is  no  reason  for  a  reduction  on  the  amount  which  it  chiims 
under  this  head.  Tliere  remains,  then,  a  sum  of  5,076,098.62  bolivars,  of  whidi  M.  de  Peretti 
demands  the  increase  to  tlie  amount  of  7,000,000  bolivars,  that  account  may  be  taken,  fii-st, 
of  the  use  of  the  interest  from  July  1,  1902,  to  the  day  of  the  award,  and  .second,  of  tiie 
depreciation  of  bonds  with  which  the  payment  of  the  indemnity  is  to  be  effected. 

Doctor  Paúl  expresses  to  his  colleague  the  desire  that  he  present,  as  he  himsi^lf  lias  <loiu', 
an  exposition  of  arguments  upon  which  he  bases  his  judgment  and  by  wliicii.  at  tlie  same 
time,  he  would  reply  to  the  arguments  presented  by  the  Venezuelan  arbitrator.  Dtutor 
Paúl  would  be  able  to  take  these  into  consideration  and  see  if  it  would  ho  possii)lt'  to  ii-ach 
an  agreement. 

M.  <le  Peretti  replies  that  he  has  no  other  arguments  to  give  than  tho.se  furni.siied  by  the 
company  it. self,  whose  argument  he  cou.sidei-s  as  .Miilicient,  and  tiiat  conse<|uenlIy  if  iiis 
colleague  does  not  agree  to  the  amount  of  7.00(),0(K)  l)o!ivars,  which  is  demanded,  In-  appeals 
to  tlic  umpire. 

Doctor  I'aúl  maintains  his  opinion,  and  it  is  agreed  that  this  claim  U'  .submitted  to  the 
judgment  of  the  umpire  provided  by  the  protocol. 
244 


HEAD   NOTES.  245 

If  there  were  error  in  the  manner  of  issuing  and  hanchng  out  the  rogatory  commissions  called 
for  by  the  claimant  company,  it  was  cured  by  the  acceptance  of  those  commissions  by 
the  attorney  of  the  claimant  company  in  the  manner  and  form  as  issued  and  handed 
out  without  objection  and  by  his  proceeding  to  make  use  of  them  for  the  purposes  for 
which  they  were  issued.  Failure  to  educe  evidence  by  means  of  these  commissions 
must  be  charged  to  the  action  or  inaction  of  the  company's  attorney,  and  not  to  the 
high  Federal  court  of  the  government  under  all  the  circumstances  detailed  in  this  ca.se. 

If  there  were  error  in  the  action  of  the  high  Federal  court  in  proceeding  to  final  decree  with- 
out serving  .special  notice  upon  coun.sel  for  the  defendant  company  therein  and  in  pro- 
ceeding to  enter  up  .such  dercee  without  notice  in  fact  to  said  company  or  its  attorney, 
it  was  cured  by  the  neglect  of  the  company  to  avail  itself  of  its  statutory  remedies  by 
petition  for  invalidation  to  the  high  Federal  court.  Failure  to  seek  .such  invalidation 
through  the  proper  statutory  methods  precludes  the  claimant  government  from  lusserting 
any  denial  of  justice  because  of  such  decree  whereas  if  an  invalidation  had  been  .sought 
and  it  had  been  denied  and  the  grounds  therefor  were  clearly  established,  it  might 
be  a  sufficient  cause  for  the  action  of  this  commi.ssion  on  the  ground  of  denial  of  justice. 

Held  that  there  was  in  said  decree  no  denial  of  justice  under  the  treaty  of  1885  or  in  virtue 
of  the  rules  or  principles  of  public  law. 

Held  that  every  matter  and  point  distinctly  in  issue  in  said  cause,  and  which  was  directly 
based  upon  and  determined  in  said  decree,  and  which  was  its  ground  and  basis,  is  con- 
cluded by  the  judgment  of  the  high  Federal  court  in  said  cause;  and  the  claimant  itself, 
and  the  claimant  government  in  its  behalf,  are  forever  estopped  from  a.ssertingany  right 
or  claim  based  in  any  part  upon  any  fact  actually  and  directly  involved  in  said  decree. 

Held  that  if  the  treaty  of  1885  were  applicable  to  this  case,  then  there  has  been  no  denial 
of  justice  or  such  a  delay  of  justice  according  to  usage  or  to  law,  nor  such  exhaustion  of 
the  legal  means  available  to  the  claimants,  nor  such  a  violation  of  treaty  or  the  rules  of 
the  right  of  nations  as  would  admit  of  a  favorable  award  if  the  jurisdiction  of  the  com- 
mis-sion  were  thus  limited. 

In  the  suit  for  rescission  the  Company  General  of  the  Orinoco  plead  no  counterclaims  or  claims 
in  offset;  hence  they  were  not  in  issue,  were  not  litigated,  and  therefore  are  not  concluded 
bj'  the  decree. 

Such  claims  as  might  have  been  plead  as  counterclaims  or  claims  in  offset  to  the  suit  in  rescis- 
sion, or  which  might  have  constituted  a  ground  for  an  independent  action,  can  be  pre- 
sented here  as  .substantive  grounds  for  an  award. 

The  date  when  the  suit  for  rescission  was  entered  in  court  is  the  day  on  which  the  i.ssues  are 
considered  as  foimed  between  the  parties.  The  cause  of  action  had  then  accrued. 
For  such  causes  as  accrued  after  that  date  the  court  gained  no  jurisdiction  in  virtue  of 
the  suit  then  pending. 

The  actions  of  the  claimant  company  and  the  respondent  government  posterior  to  that  date 
are  all  proper  subjects  of  inquiiy  and  of  award. 

The  refusal  of  the  respondent  government  to  recognize  or  permit  the  properties,  franchises, 
rights,  and  privileges  of  the  Company  General  of  the  Orinoco  to  pa.ss  to  the  English  com- 
pany which  was  ready  to  take  them,  was  a  fatal  breach  of  the  contract  and  charges  the 
respondent  government  with  all  loss  and  damage  which  accrued  to  the  claimant  com- 
pany on  account  thereof. 

The  fact  that  there  was  ample  justification  to  the  respondent  government  for  taking  this 
position  as  a  government  does  not  change  its  relation,  as  the  other  party  to  a  contract, 
with  the  claimant  company,  and  as  such  other  party  it  must  stand  m  the  same  relation 
as  though  it  were  not  also  exercising  governmental  functions  requiring  it  to  prevent 
the  claimant  company  from  completing  its  contract  of  cession. 

The  claimant  company  had  several  grounds  of  defense  to  the  suit  for  rescission;  among  them 
these: 

(a)  No  oiler  to  restore  to  the  company  the  lienefits  confcired  i)y  it  ui)on  tiie  plaintiff,  it  being 
easily  su.sceptible  of  proof  that  it  had  conferred  many  such  iK'iielits,  capable  of  lx>ing 
measured  in  money. 


246  COMPANY    GENERAL    OB^   THE    ORINOCX)    CASE. 

(b)  The  respondent  government  could  not  have  sustained  its  position  that  it  was  without 
fault  in  the  premises.  The  opinion  gives  in  detail  the  instances  falling  under  fa<li  of 
these  heads. 

None  of  these  facts  being  brought  to  the  attention  of  the  high  Federal  court,  it  could  only 
pass  the  decree  which  it  linally  registered. 

The  respondent  government  having  prevented  the  completion  of  the  contract  between  the 
Company  General  of  the  Orinoco  and  the  British  company,  a.s  heretofore  stated,  it  became 
responsible  for  the  value  of  the  concession,  since  this  action  of  the  respondent  govern- 
ment resulted  in  practically  a  total  loss. 

Approximate  equity  is  all  that  can  be  attempted  in  a  ca.se  .so  indefinite  in  many  of  its 
important  facts. 

When  this  sovereign  act  of  the  respondent  government  was  interposed,  the  company  was 
in  .shape  to  be  relieved  of  all  its  indebtedness  through  the  action  of  the  British  com- 
pan}'.  There  is  no  inequity  in  holding  that  the  value  of  the  concession  was  the  sum 
which  the  British  company  was  then  ready  to  pay. 

This  proceeding  maj^  be  considered,  in  a  limited  sense,  as  in  the  nature  of  a  creditor's  bill, 
the  purpose  of  which  is  to  recover  that  which  is  due  for  the  benefit  of  the  creditors. 


OPINION  OF  THE  VENEZUELAN  COMMISSIONER. 

Under  date  of  July  10,  1902,  Messrs.  Louis  Roux,  Felix  Joseph  Vial, 
and  André  Emile  Belicam,  liquidators  of  the  "Compagnie  Générale  de 
rOrénoque,"  addressed  a  memorial  to  the  minister  of  foreign  aííairs 
of  France,  in  which  they  state  the  following  : 

That  in  consequence  of  the  sentence  given  by  the  high  Federal  court  in  1891,  without  the 
appearing  in  court  of  the  plaintiff  company  (par  défaut),  the  creditors  of  the  said  company 
were  obliged  to  apply  to  the  liquidators  for  the  vindication  of  their  rights  against  the  Gov- 
ernment of  Venezuela. 

Following  this  the  liquidators  present  a  statement  of  their  claims, 
as  per  items  below  : 

Francs. 

1.  Capital  of  the  Compagnie  Générale  do  l'Orénoque 1 ,  .t()ü,  Oü().  ()ü 

Francs. 

2.  To  the  company  called  "La  Monnaie" 609,0.30.91 

Interest  at  G  per  cent  from  1892  to  date  and  other  expenses. .   655,  659.  45 

1,264,690.36 

3.  To  "La  Banque  de  Consignations '' 236,  S.'ifi.  00 

Interest  at  6  per  cent  from  April  1,  1890,  to  date 248,  T.'i;?.  (K) 

4.8,5,109.00 

4.  To  Mr.  Alfred  Chauvelot 34.5, 976. 00 

Interest  at  6  per  cent,  as  per  account 292, 102.  (X) 

(»3S,  078.  (X) 

5.  To  Mr.  Eugene  Ferminac 101 ,  000. 00 

Interest  for  twelve  years  at  (i  per  cent 100,  .340. 00 

201,  340.  (K) 

6.  To  Mr.  Ix)uis  Rou.\ 30,  ÍM.  00 

Interest  at  6  per  cent ,  as  per  account 24, 071 .  (M) 

.54.  .575. 00 

7.  To  Mr.  Albert  de  Suin 0,  264. 00 

Interest 5,083.(K) 

11,347.00 


OPINION    OF    VENEZUELAN    COMMISSIONER.  247 

Francs. 

8.  To  Mr.  Theodor  Delort 14,  641 .  26 

Interest,  ten  years  at  6  per  cent 8,  402.  00  Francs. 

2.3,  043.  26 

9.  Liquidation  bonds .♦ 157,  916. 00 

10.  Expon.ses  of  tlie  English  company 25, 000.  00 

Expenses  of  the  Belgian  company 100, 000.  fX) 

Interest 90,  000.  00 

215,  000.  00 

11.  Sundry  expenses  and  unpaid  salaries  of  1891 75,000.  00 

12.  Interest  on  the  capil al  of  tlie  company  from  1891  at  6  per  cent 990, 000.  GO 

Total 5,  616,  098.  62 

To  this  amount  the  hqiiidators  further  add  the  sum  of  2,000,000 
francs  under  the  head  of  eventual  profits,  thus  bringing  up  the  total 
to  7,616,098.62  francs. 

To  this  statement  the  liquidators  annex  nine  abstracts  of  accounts, 
referring  to  seven  items  of  the  claim,  Nos.  7,  9,  10,  and  11  being 
referred  to  as  copies  taken  from  the  books  of  the  company. 

In  another  memorial,  presented  in  Paris  on  September  12,  1901, 
by  the  same  liquidators  to  the  minister  of  foreign  affairs,  they  annex 
two  documents,  one  of  which  contains  the  declaration  of  Mr.  Andres 
Fiat,  the  former  attorney  of  the  company  at  Caracas,  who  was  acting 
as  such  at  the  time  the  company  was  sued  before  the  high  Federal 
court,  in  which  Mr.  Fiat  afRrnis — 

that  the  sentence  of  said  court  was  given  without  having  served  previous  legal  summons  to 
him  or  to  the  coun.sel  of  the  company,  which  was  thus  really  a  sentence  pronoimced  with- 
out hearing  one  of  the  parties  concerned. 

The  liquidators  ñirther  state  in  said  memorial  that  of  the  two  lawyers 
who  acted  as  counsels  for  the  company,  viz..  Dr.  Diego  B.  Urbaneja 
and  Dr.  Ramón  F.  Feo,  the  first  is  dead,  but  the  second  of  them  is  still 
alive,  practicing  in  Caracas,  and  in  capacity  to  make  a  declaration 
similar  to  that  of  Mr.  Fiat's. 

Together  with  the  aforesaid  two  memorials  and  annexed  documents 
referred  to  there  is  a  letter  from  Mr.  Theodor  Delort,  dated  April 
14,  1 903,  to  the  French  minister  at  Caracas,  in  which  he  says: 

Before  my  depart  ure  from  Paris,  the  liquidators  have  conferred  on  me  the  power  of  attorney 
of  the  Compagnie  Générale  de  rOrénocjue,  and  I  hold  such  power  at  the  disposal  of  the 
legation.  All  the  books,  documents,  and  accounts  of  said  company  are  in  the  keeping  of  the 
liquidators,  who  can  not  let  them  out  of  their  pos.session,  as  the  work  of  li(|uidation  is  yet 
going  on,  and  they  may  he  at  an}- time  sununoned  before  the  commercial  tribunal  of  the 
Seine,  by  rea.son  of  the  lia'oility  of  the  company  in  case  that  the  result  of  the  claim  now 
presented  against  the  Government  of  Venezuela  should  not  be  sufficient  to  wipe  out  those 
liabilities. 

They  also  produce  a  report  or  memorial  of  111  pages,  which  was 
deposited  with  the  minister  of  foreign  affairs  in  Paris  on  Decem- 
ber 3,  1895,  containing  a  general   description  of  the  enterprise  of 


248  COMPANY    GENERAL    OF    THE    ORINOCO    CASE. 

"La  Compagnie  Générale  de  l'Orénoque"  and  a  compendium  of  the 
(locuments  which  constitute  the  action  entered  on  behalf  of  the  Gov- 
ernment of  Venezuela  on  the  2Sth  May,  ISOO,  by  the  financial  repre- 
sentative (fiscal  nacional  de  hacienda)  against  the  company  for  the 
rescission  of  its  contract  and  for  damages.  Annexed  to  this  report 
the  lifjuidators  presented  128  documents,  the  greater  part  of  which  are 
private  letters,  memorials,  and  notes,  ver}"  many  of  which  are  void  of 
legal  authenticity. 

The  Venezuelan  commissioner  has  examined  all  and  ever}'  one  of 
these  memorials,  notes,  papers,  and  private  letters  presented  to  him 
by  the  French  commissioner,  and  he  has  also  examined  the  process  car- 
ried on  before  the  high  Federal  court  against  the  said  company  during 
the  3'ears  1890  and  1891,  as  well  as  all  the  documents  filed  in  the 
ministry  of  fomento  regarding  the  several  concessions  of  the  contracts 
made  by  the  Government  of  Venezuela,  thus:  In  1885,  with  Mr.  Miguel 
Tejera  for  the  exploitation  of  the  natural  products  of  the  territory  of 
the  Upper  Orinoco  and  Amazonas;  and  in  1887,  with  Mr.  Theodor 
Delort  for  the  exploitation  of  tonca  bean  (sarrapia)  in  the  territory 
comprised  between  the  Orinoco  River,  Brazil,  and  British  Guiana;  all 
of  which  contracts  were  transferred  to  the  Compagnie  Générale  de 
rOrénoc^ue.  A  process  took  place  between  the  Government  of 
Venezuela  and  the  Compagnie  Générale  de  l'Orénoque,  entered  upon 
by  the  financial  representative  of  Venezuela  (fiscal  nacional  de 
hacienda)  on  behalf  of  said  Government,  said  action  having  begun 
before  the  high  Federal  court  on  the  19th  June,  1890,  and  the  object 
of  same  being  the  following:  First,  the  rescission  of  the  contract  signed 
on  the  17th  December,  1885,  between  Gen.  Guzman  Blanco,  envoy 
extraordinar}"  and  minister  plenipotentiar}"  to  several  courts  of  Europe, 
and  Mr.  Miguel  Tejera,  for  the  exploitation  of  all  the  vegetable  and 
mmeral  products  of  the  territories  of  the  Upper  Orinoco  and  Amazonas 
during  a  period  of  thirty-five  years;  second,  the  rescission  of  the  con- 
tract signed  on  the  1st  April,  1887,  between  the  minister  of  fomento  of 
the  United  States  of  Venezuela  and  Mr.  Theodor  Delort  for  the  exploita- 
tion of  tonca  beans  (.sarrapia)  during  a  ])eriod  of  twenty-five  years  on 
the  Government  lands  which  lie  between  the  extreme  eastern  boundary 
of  the  territories  of  the  Upper  Orinoco  and  Amazonas  and  British 
Guiana  and  between  the  Orinoco  and  the  Brazilian  boundary  line:  and 
third,  for  payment  by  the  company  of  the  sum  of  40,048.62  fnincs  for 
danuxges  owing  to  the  nonfulfillment  of  said  contracts  and  e.\])enses 
and  costs  incurred  in  this  ])rocess. 

This  suit  was  ended  by  final  judgment  p;  ssed  i)y  the  high  Fedend 
court  on  the  14th  of  October,  1891,  ¡igainst  the  (•omi)!iny,  which  wns 
condemned  to  pay  the  sum  of  40,048.62  francs  as  well  as  expenses  and 
costs  incurred  in  the  piocess. 


OPINION    OF    VENEZUELAN    COMMISSIONER.  249 

The  claim  which  the  Hciuichitors  of  the  Compagnie  Générale  de 
rOrénoque  pretend  to  make  «íood  agjainst  the  Government  of  Vene- 
zuehi  is,  therefore,  based  on  a  jiulfíment  ]);;sse(I  by  tlie  hitili  Feih'ral 
court  since  October,  1901,  which  has  been  allirmed  and  has  the  sanc- 
tion of  chose  jugée. 

The  contracts  between  the  Government  of  Venezuela  and  Messrs. 
Mi(j;uel  Tejera  and  Doctor  Dclort,  which  were  afterwards  ceded  to  the 
Compai^nie  Générale  de  l'Orénoque,  were  signed  under  the  constitu- 
tion of  27th  of  April,  ISSl,  and  the  civil  code  which  entered  into  oper- 
ation on  the  27th  of  January  of  the  same  year.  Article  26  of  said 
civil  code  states — 

that  any  party,  even  if  not  resident  in  Venezuela,  ean  be  sued  in  the  RepiibUc  for  obliga- 
tions contracted  for  in  the  Repul)lic  or  the  fulfillment  of  which  has  to  be  carried  on  in  \'ene- 
zuela.a 

Article  1-i  of  the  contract  signed  with^Ir.  Tejera  for  the  exploitation 
and  colonization  of  the  territories  of  Upper  Orinoco  and  Amazonas,  and 
article  15  of  the  contract  signed  with  Mr.  Th.  Delort  for  the  exploita- 
tion of  all  the  tonca  beans  existing  on  the  Government's  lands  men- 
tioned in  said  contract,  both  expressly  stipulite — 

that  all  doubts  and  controversies  arising  from  the  fullillinent  of  both  agreements  are  to  be 
decided  by  the  tribunals  of  the  Republic  according  to  its  laws. 

In  the  memorial  presented  on  the  12th  of  September,  1901,  to  the 
minister  of  foreign  affairs  in  Paris  the  liquidators  of  the  Compagnie 
Générale  de  l'Orénoque  contend  that,  according  to  a  document  which 
they  annex  thereto,  containing  a  declaration  of  their  former  attorney 
at  Caracas,  Mr.  ^Vndres  Fiat,  who  was  acting  as  such  at  the  time  of  the 
suit,  judgment  wts  piissed  by  the  high  Federal  court  without  sum- 
mons having  been  served  either  on  him  or  on  the  counsel  of  the 
company,  which  is  equÍA^alent  to  a  sentence  pronounced  without  hear- 
ing one  of  the  parties  concerned.  This  aforesaid  document  is  signed 
by  Mr.  Fiat  in  St.  Cloud  on  the  1st  of  May,  1901,  and  is  legalized  by 
the  prefect  of  the  said  city  and  by  the  minister  of  foreign  affairs  of 
France.     Mr.  Fiat  therein  certifies — 

that,  while  residing  in  the  city  of  Caracas  in  ISiWand  1891,  the  Compagnie  Générale  de  l'Oré- 
noque conferred  to  him  the  necessarj-  power  of  attorney  that  he  might  represent  the  com- 
pany at  Caracas  in  all  matters. 

He  also  certifies — 

that  with  reference  to  the  suit  entered  b}'  the  fiscal  nacional  de  hacienda  on  the  23d  of  ^lay, 
1800,  before  the  high  Federal  court,  against  the  Compagnie  Générale  de  l'Orénoque,  for 
rescission  of  the  concessions  of  the  17th  of  December,  188.5,  and  of  the  1st  of  April,  1887,  he 
was  never  summoned  nor  did  he  ever  receive  an  order  to  appear  in  court,  and  that  the  counsel 
of  the  company,  Messrs.  Diego  B.  Urbaneja  and  RauKUi  F.  Feo,  were  never  sununoned 
either. 


a  Art.  26.  Pueden  ser  demandados  en  Venezuela  aun  los  no  domiciliados  en  ella,  por 
obligaciones  contraídas  en  la  República,  ó  que  deben  tener  ejecución  en  Venezuela. 


250  COMPANY    GENERAL    OF   THE    ORINOCO    CASE. 

He  further  certifies — 

that  consequently  the  judgment  of  the  high  P'cdonil  court  was  passed  during  his  absence  on 
the  14th  of  October,  1891,  and  that  neither  he  nor  tlie  two  aforesaid  counsel  of  the  com- 
pany ever  received  any  advice,  and  in  this  way  they  never  knew  that  sucli  sentence  had 
been  pronounced  until  three  days  after,  when  they  saw  it  published  in  the  Officiai  Gazette 
of  the  17th  of  October,  1891. 

The  declarations  of  Mr.  Fiat  contained  in  this  document  are  inac- 
curate, as  will  now  be  proved.  The  suit  was  entered  on  the  28th  of 
May,  1890,  by  the  iiscal  nacional  de  hacienda  before  the  hijih  Federal 
court,  and  on  the  30th  of  the  same  month  the  president  of  the  court 
issued  a  writ  thus  : 

Considering  that,  according  to  the  document  annexed  to  the  suit,  Messrs.  Andrés  Fiat  and 
Bernabé  Planas  appear  to  be  the  representatives  of  the  company  in  Venezuela,  order  is 
here!»}-  given  for  them  to  he  summoned  in  order  that  they  may  declare  if  they  are  still  hold- 
ing the  power  of  the  company,  and  in  order  to  appoint  a  counsel  for  the  defendant,  in  case 
they  are  no  longer  attorneys  of  tlie  company,  in  accordance  with  the  law. 

There  is  leo;al  proof  in  the  papers  of  the  suit  that  they  were  both 
summoned  on  the  same  30th  day  of  ^lay,  and  they  both  appeared  in 
court  on  the  2d  of  June  and  declared  : 

The  only  representative  now  of  the  Compagnie  Générale  de  l'Orénoque  is  Mr.  Andrés 
Fiat,  who  will  duly  produce  his  power  of  attorne}'  in  court  on  Wednesday,  the  4th  of  June. 

On  the  said  4th  of  June  Mr.  Fiat  presented  to  the  court  his  power  of 
attorney  and  a  translation  of  the  same  was  ordered.  On  the  16th  of 
June  the  interpreter,  Mr.  Veloz  de  Goiticoa,  presented  the  power  of 
attorney  duly  translated,  and  on  the  same  date  the  court  issued  a 
writ  ordering  that  the  orit^inal  power  of  attorney  be  returned  to  its 
owTier  and  to  summon  the  same  in  due  form.  On  the  19th  of  June  the 
fiscal  nacional  de  hacienda  altered  the  terms  of  the  suit,  limiting  the 
sum  demanded  from  the  company  for  damages  to  40,048.62  francs, 
as  per  account  annexed.  On  the  same  19th  of  June  Mr.  Fiat,  as  rep- 
resentative of  the  company,  gave  a  receipt  for  the  document  contain- 
ing the  plaintifi^'s  suit  (libelo  de  demanda),  which  was  bunded  to  him, 
and  said  receipt  was  filed  in  court.  On  the  s.ime  day  the  court  issued 
a  decree  (folio  88)  by  which  order  was  given  to  notifj^  Mr.  Fiat  that 
the  terms  of  the  suit  had  been  altered,  and  a  ('0]>y  of  which  alteration 
was  handed  to  him. 

Mr.  Fiat  was  to  give  a  leceipl  for  tliis  copy  and  he  was  to  ])resent  in  court  his  answer  to 
tlie  suit  ten  days  after  this  date. 

This  writ  was  carried  into  execution  on  the  same  day, and  Mr.  Fiat 
gave  a  receipt  on  the  2()th  of  fliine,  which  receipt  is  filed  in  court. 
On  the  2d  of  July,  which  was  the  day  a])pointe(l  for  answering  the 
suit,  there  appeared  in  court  the  fiscal  nacional  d(>  hacienda  and  Mr. 
Fiat,  accompanied  b}'  his  counsel,  1).  Ji.  Urhaneja  and  K.  F.  Feo, 
and  then  and  there  all  the  parties  agreed  to  defer  the  answering  of  the 
suit  to  a  date  fixed  »it  eight  days  ¡ifler  the  yjresentalioii  of  ihc  docu- 


OPINION    OF    VENEZUELAN    COMMISSIONER.  251 

ments  to  which  reference  is  made  in  the  suit  l)y  the  plaintiff,  in  order 
that  the  com/pany  should  have  time  to  examine  these  documents.  On 
tlie  22(1  of  July,  Mr.  Fiat,  accompanied  by  his  two  counsel,  Doctors 
Urbaneja  and  Feo,  appeared  in  court  and  filed  their  answer  to  the  suit, 
petitioning  the  court  at  the  same  time  for  an  extraterritorial  term 
in.  order  to  obtain  evidence  from  Fr¿nce  r.nd  Rome.  The  suit  then 
followed  its  ordinary  legal  course,  during  which  the  parties  were  to 
produce  their  respective  evidence,  and  the  court  reserved  its  right  to 
decide  on  Mr.  Fiat's  petition  regarding  an  extra  territorial  period  of 
time.  Later  on  the  president  of  the  court  granted  one  hundred  days 
to  obtain  the  extraterritorial  evidence,  and  Mr.  Fiat  hr.ving  appealed 
from  tliis  decision,  considering  that  the  term  granted  was  too  short, 
the  court  then  extended  it  to  one  hundred  and  thirtj'-  days.  On  the  5th 
of  September  Mr.  Fiat  was  notified  that  the  fisc;  1  had  petitioned  the 
court  that  the  suit  be  registered  in  Ciudad  Bolívar,  in  order  to  avoid 
any  transfer  intended  by  the  compan}^.  Mr.  Fiat  duly  received  this 
notice,  at  the  foot  of  which  he  set  his  signature,  and  on  the  8th  of 
September  he  appeared  in  court,  accomp.uiied  by  his  counsel.  Doctors 
Urbaneja  and  Feo,  and  s.iid — 

that  lie  did  not  believe  tliat  he  could  make  any  legal  opposition  to  the  Government,  which  is 
a  party  in  this  suit,  for  the  recording  of  the  suit  with  the  alterations  which  were  made  to  it 
afterwards. 

On  the  same  daj^  order  was  issued  by  the  court  that  a  copy  of  the 
suit  be  sent  to  the  judge  of  first  inst:ince  of  Ciudad  Bolívar  for  its 
being  recorded  in  the  registrj^  office  in  that  city,  and  said  order  was 
carried  into  effect  on  the  same  15th  day  of  September. 

In  the  course  of  the  suit  Mr.  Fiat  presented  the  court  a  petition 
dated  August  7,  1900,  in  order  that  such  evidence  might  be  advanced 
as  he  thought  convenient  to  the  case  of  the  company.  Among  this 
evidence  were  declarations  to  be  made  by  witnesses  resident  in  Paris, 
Rome,  Port  of  Spain,  Rio  Chico,  Barcelona,  San  Fernando  de  Apure, 
and  Caracas.  The  president  of  the  court  issued  a  writ,  dated  August 
12,  admitting  the  presentation  of  such  evidence,  as  far  as  the  law  per- 
mitted, and  commissioned  the  several  civil  judges  of  first  instance  of 
the  localities  of  the  respective  witnesses  to  hear  their  declarations, 
and  petitioned  and  issued  rogatory  commissions  to  the  competent 
judges  of  Paris,  Rome,  and  Port  of  Spain  for  the  same  purpose.  On 
the  11th  of  October  of  the  same  year  Mr.  Fiat  appeared  in  court  and 
stated — 

that  by  virtue  of  the  authority  conferred  on  him  l)y  power  of  attorney  from  the  company, 
he  conferred  special  power  to  Dr.  Ramón  Feo  and  Dr.  Martin  F.  Feo,  so  that  both  together 
or  any  one  of  them  separately  may  intervene  in  tiie  collecting  of  evidence  that  is  to  be  made 
by  the  fiscal  in  this  capital  city;  that  he  also  conferred  special  power  to  Mr.  Armando  F. 
Larrouget,  of  Porto  Rico,  for  the  collecting  of  evidence  on  behalf  of  the  company  in  that 
district  and  to  inten-ene  in  the  collecting  of  evidence  by  the  plaintiff;  that  he  conferred 
special  power  on  Mr.  Julio  Philipe,  of  Barcelona,  for  all  the  evidence  that  is  to  be  collected  in 


252  COMPANY    OENERAL    (►F    THE    ORINOCO    CASE. 

that  city;  that  lie  conferred  special  power  on  Dr.  lirigido  Xatera.  of  Ciudad  Bolívar,  for  the 
collection  of  the  evidence  in  Ciudad  Bolivar  and  the  Territorio  Orintxo:  that  he  conferred 
special  power  on  Mr.  Casto  RodrijîueZjof  San  Ke ruando  de  Apure,  for  all  the  evidence  to  Ix" 
collected  in  that  city;  that  he  conferred  .special  power  on  Mr.  E.  K.  Ma.son,  of  Port  of  Spain, 
Trinidad,  for  all  the  evidence  to  be  collected  in  that  city,  and  that  he  conferred  .special  power 
to  Mr.  Andrés  Lenel  Gutierrez  for  all  the  evidence  that  is  to  \>c  collected  in  the  Territories 
Orinoco  and  Amazonas. 

By  order  of  the  11th  of  October,  1890,  the  president  of  the  court 
ordered  that  commissions  and  petitions  be  issued  to  the  (Hfferent 
parties  resithno;  in  the  different  h^caliti'es  where  the  evicUmce  was  to 
be  collected,  and  that  in  said  petitions  and  commis.sions  the  insertion 
of  the  powers  conferred  on  them  be  made,  as  requested  by  Mr.  Fiat. 
The  said  order  was  carried  into  execution  on  the  13th  of  October, 
as  it  is  proved  in  the  records  b\'  a  note  signed  b}'  the  secretary  of  the 
court  to  the  effect  that  all  the  commissions  and  petitions  issued  had 
been  handed  to  the  defendant.  All  these  connnissions  and  ¡petitions 
were  duly  returned,  after  having  been  carried  into  operation,  and 
exist  in  the  records  of  the  court,  with  the  exception  of  those  addressed 
to  the  judges  of  Paris  and  Trinidad  and  to  Tlis  Excellency  Cardinal 
]Jnieoni,  of  Kome,  wliicli  were  not  returned  by  the  representative  of 
the  company,  although  he  received  them. 

In  page  No.  56  of  the  document  containing  the  evidence  presented 
by  the  attorney  of  the  compan}'  there  is  a  note  signed  ])y  the  secretar} 
of  the  court  on  the  24th  of  March,  1891,  in  which  it  is  stated  that 
after  due  computation  both  the  ordinary  and  the  extraordinary  period 
of  time  granted  for  the  collecting  of  evidence  expires  on  that  same 
24th  of  March,  1891.  On  the  same  day  the  president  of  the  court 
ordered  that,  the  probatory  period  having  expired  that  day,  the 
papers  and  records  of  the  suit  were  to  be  sent  to  the  full  court,  which 
was  duly  effected. 

On  the  29th  of  April  the  fiscal  stated  that,  this  being  the  time  for 
the  court  to  study  the  papers  and  records  of  the  suit,  order  be  issued 
for  the  same  to  be  effected.  On  the  21st  of  May  the  fiscal  reiterated 
his  petition,  and  on  the  23d  order  was  i.ssued  to  begin  the  study  of  the 
papers  and  records  on  the  3()th.  The  study  of  the  ])apers  and  evi- 
dence commenced  on  the  16th  of  June  and  proceeded  on  the  2lth 
of  June,  as  the  court  did  not  meet  on  the  17th,  18th,  19th,  2()tli. 
21st,  22(1,  and  23d.  On  the  1st,  4th,  and  7th  of  August  the  court 
called  suppletory  judges  to  lili  tbe  vacancies  of  Dr.  Chuecos 
Miranda  and  Mr.  Carlos  TIcrnaiz,  who  were  absent,  and  that  of  Dr. 
J.  P.  Rojas  Paúl  an<l  General  W'lutini,  who  had  petitioned  to  be 
excused  from  attending  to  comt.  On  the  Kit  h  of  Septend^er  the 
sup])letory  judge,  Dr.  (Mrlos  Orisanti,  was  called,  jind  the  li)th  day 
of  the  same  month  was  appointed  for  the  study  of  the  j)rocess.  Doctor 
Grisanti  joined  the  court  on  the  day  fixed,  and  the  study  of  thei)api>rs 
and  records  was  connuenced  on  the  following  day.     The  same  i)ro- 


OPINION    OF    VENEZTTELAN    COMMISSIONER.  253 

ceeded  on  the  21st  of  September  and  followinji  days  until  the  2r)th, 
and  the  29th  day  of  the  same  month  was  appointed  to  hear  the  reports 
or  plea(Hn<;s  of  the  phiintiff  and  defenchmt.  On  this  29th  (hiy  of 
váeptend)er  the  fiscal  nacional  de  hacienda  appeared  in  court,  but  no 
representative  or  counsel  on  behalf  of  the  defendant,  the  court  then 
proceeding  to  sit  in  conference.  According  to  notes  set  in  the  records 
by  the  secretar}^  of  the  court  in  chronological  order,  it  is  evidenced 
that  from  Septend)er  30  to  October  13  only  one  sitting  of  the  court 
took  place,  on  the  3d  of  October,  during  which  the  judges  conferred 
on  the  judgment  to  be  passed  and  agreed  as  to  the  same.  On  the 
14th  of  October  the  sentence  was  drawn  and  signed  by  the  mend)ers 
of  the  court  on  the  same  day. 

From  the  foregoing  it  is  clearly  evidenced  that  the  Compagnie 
Générale  de  l'Orénocpie  was  dnly  summoned,  through  their  representa- 
tive in  Caracas,  Mr.  A.  Fiat,  to  appear  in  court  to  answer  the  suit 
entere.l  against  them  before  the  high  Federal  court  by  the  financial 
representative  of  Venezuela  (Fiscal  de  la  Nación)  ;  that  Mr.  Fiat  did 
appear  in  court,  accompanied  by  his  counsel,  Drs.  D.  B.  Urbaneja  and 
llamón  F.  Feo;  that  he  made  such  contenticms  as  he  deemed  con- 
venient on  behalf  of  the  defendant  company;  that  he  petitioned  for  an 
extraterritorial  term  in  order  to  collect  evidence  in  various  foreign 
localities,  and  the  same  was  granted  to  him;  that  he  appointe  1  special 
attorneys  for  the  collection  of  such  evidence  within  and  without  the 
territory  of  Venezuela;  that  the  commissions  and  petitions  issued  by 
the  court  to  the  different  judges  and  public  officials  of  the  various 
localities  where  the  evidence  was  to  be  collected  were  handed  to  him 
in  due  time;  that  he  forwarded  to  their  destinations  these  petitions  and 
commissions,  which  were  all  returned  to  the  court,  after  a  part  of  the 
evidence  had  been  collected;  that  another  part  of  the  evidence  was 
not  collected,  either  throngh  negligence  of  the  company  or  because  it 
desisted  voluntarily  of  doing  so,  as  there  is  no  proof  in  the  record  that 
this  was  due  to  any  cause  beyond  the  control  of  the  representative  of 
the  company;  that  after  the  expiration  of  the  extra  term  granted  by 
court  for  the  collection  of  evidence,  on  the  24th  of  March,  1891,  the 
fiscal  de  hacienda  immediately  petitioned  that  the  court  proceed  to 
the  examination  and  study  of  the  ])apers  and  record  of  the  suit  in  order 
that  judgment  be  passed,  for  which  purpose  he  continually  applied  to 
court,  both  plaintiff  and  defendant  being  present  as  according  to  law 
and  there  being  no  necessity  of  their  being  newly  summoned  for  the 
complementary  acts  of  the  suit  required  to  arrive  to  its  final  stage  of 
being  sentenced. 

The  sentence  was  thus  pronounced  by  the  high  Federal  court ,  after 
complying  rigorously  with  the  legal  prescriptions  and  with  all  the 
formalities  of  the  proceedings  as  established  by  law  on  behalf  of  both 
parties  interested  for  the  defense  of  their  res{)ective  rights. 


254  COMPANY    GENERAL    OF    THE    ORINOCO    CASE. 

In  the  iiioinorial  or  report  presented  by  the  hquulators  of  the  com- 
pany to  the  minister  of  foreign  affairs  of  Paris,  on  tlie  3d  of  December, 
1895,  they  pretend  that  on  the  25th  of  September,  1S91 ,  the  high  Federal 
court  issued  an  order  that  the  contending  parties  be  advised  that  the  29th 
September  had  been  appointed  as  the  date  on  which  they  {plaintiff  and 
defendant)  were  to  present  their  respective  reports  or  pleadings,  and  that 
neither  the  representative  of  the  company  nor  his  counsel  were  sum- 
moned or  advised,  which  lack  of  notice  was  in  violation  of  articles  109 
and  162  of  the  Code  of  Civil  Procedure  of  Venezuela,  and  sufficient 
cause  to  invalidate  the  sentence. 

This  is  inaccurate,  as  there  was  no  such  decree  of  the  court  ordering 
that  the  contending  parties  be  notified;  nor  is  there  any  violation  of 
articles  109  and  162  of  the  Code  of  Civil  Procetlure  as  alleged  for  the 
nullity  of  the  sentence. 

In  the  papers  and  record  no  decree  of  the  court  exists  under  date  of 
25th  of  September,  ordering  the  parties  to  be  notified,  there  being  sim- 
ply a  note  sent  by  the  secretar^^  of  the  court,  which  reads  thus: 

C.4RACAS,  25th  September,  1891. 

In  the  sitting  of  this  day  the  study  and  examination  of  tlie  papers  and  record  by  the  court 
was  completed  and  the  sitting  of  the  29th  current  is  appointed  for  plaintiff  and  defendant 
to  present  their  respective  reports  or  pleadings. 

Let  the  parties  be  notified.  O.  BiRuos. 

As  may  be  seen  from  the  draft  of  the  foregomg  note  and  from  the 
phrase  ''let  the  parties  be  notified,"  which  may  be  seen,  at  first  sight, 
was  forcibly  inserted  between  the  last  line  and  the  signature  of  the 
secretary,  the  said  note  was  a  fabrication  of  said  secretary,  conforming 
to  no  legal  prescription,  and  in  no  way  was  it  an  order  or  decree  of  the 
judges  of  the  court,  who  are  the  only  parties  authorized  by  law  to  issue 
such  orders. 

Article  287  of  the  Code  of  Civil  Procedure  in  force  at  that  time 
(chapter  fourth,  on  the  study  and  sentences  of  suits)  directs  the 
following: 

iVfter  the  completion  by  the  judges  of  the  study  and  examination  of  all  tiie  papei-s  and 
record  of  the  suit  they  will  hear  the  reports  which  the  contending  parties  may  atldre.ss  to 
the  court  verbally  or  through  their  representatives  and  counsels,  and  they  will  also  read  sucii 
reports  as  said  parties  maj-  addreas  in  writing  which  will  be  filed  in  the  record." 

It  may  be  gathered  from  this  that,  once  the  study  and  examination 
of  the  papers  and  records  has  been  completed,  there  is  no  neecl  of  sum- 
moning the  parties  for  them  to  present  their  reports.  Article  89  of 
the  same  code  reads  thus: 

The  summons  to  tiu^  defendant  for  answering  th(>  said  (demand)  having  Ix-en  .served  there 
is  no  need  for  serving  any  further  summons  for  any  act  during  the  coui"s»>  of   the   litis,  nor 

a  Art.  287.  Concluida  esa  relación  .se  oirán  los  informes  que  de  i)alubra  dirijan  las  partes, 
sus  apoderados  ó  patrocinantes  y  se  leerán  los  (jue  presenten  por  escrito,  los  cuales  se 
agregarán  á  los  autos. 


OPINION    OF    VENEZUELAN    COMMISSIONER.  255 

an}^  summons  whicli  may  need  to  be  served  will  suspend  tlic  i)ioc'eedings,  unless  tlu-re  l)e  a 
special  legal  prescription  to  the  contrary." 

The  words  of  this  article  are  so  conchisive  that  they  exckule  any 
possibihty  that  the  court  mií^ht  have  considered  it  necessary,  after 
studying  and  examining  the  papers  and  records,  to  sumniou  tlie  con- 
tending parties  to  present  their  reports  on  the  process,  whicli  had  not 
been  in  suspense  at  any  time. 

Article  No.  109,  quoted  by  the  liquidators  of  the  company,  reads 
thus  : 

When  a  litis  be  in  a  state  of  suspense,  owing  to  nxitives  caused  i)y  the  contending  parties, 
it  will  remain  in  this  state  until  any  one  of  the  interested  parties  petitions  for  its  continua- 
tion. In  this  case  the  other  party  or  his  representative  will  be  summoned,  but  the  pro- 
ceedings can  not  follow  their  couise  until  this  sun>mons  be  effected. '> 

The  process  to  which  I  am  now  referring  was  never  in  this  case  and 
far  from  its  ever  having  been  in  suspense  owing  to  motives  caused  by 
the  contending  parties,  it  appears  from  the  records  that  on  the  same 
day  that  the  probatory  term  expired  the  fiscal  petitioned  for  the 
active  continuation  of  the  case  and  several  orders  (sefialamientos) 
were  then  and  there  issued  for  the  study  and  examination  of  the  papers 
and  records  and  in  order  to  complete  the  court  by  the  appointment  of 
adjunct  judges,  all  of  which  is  evidenced  by  the  respective  notes  set  in 
the  records  by  the  secretary  of  the  court.  The  other  article  quoted  as 
having  been  violated  is  No.  162  of  the  same  code,  anil  it  reads  thus: 

When  the  tribunal  be  so  taken  up  with  Ijusiness  as  not  to  be  able  to  commence  the 
process  on  the  day  appointed,  or  on  any  of  the  following  eight  days  or  b\'  any  other  cause 
and  the  process  be  thus  delayed  indefinite]}',  the  contending  paities  or  their  representa- 
tives shall  be  notified  of  the  new  date  appointed  for  commencing  the  same,  in  the  manner 
established  by  article  109,  but  the  temi  fixed  by  this  article  being  liable  to  be  reduced.c 

It  is  evidenced  from  the  notes  set  in  the  records  that  the  first  act  of 
examining  and  studying  the  papers  and  records  took  place  on  the  16th 
of  June  ;  that  the  same  followed  its  course  on  the  24th  of  June,  before 
eight  sittings  of  the  court  had  transpired,  an  adjunct  judge  was  ap- 
pointed on  the  1st  of  August  to  fiJl  the  vacancy  caused  by  the  absence 
of  Dr.  Chuecos  Miranda  ;  that  Mr.  Carlos  Hemaiz,  who  had  been  ap- 
pointed as  adjunct,  being  away  from  the  city,  Dr.  J.  P.  Rojas  Paúl  was 

a  Art.  89.  Hecha  la  citación  para  la  litis-contestación,  no  habrá  necesidad  de  practicarla 
de  nuevo  para  ningún  acto  del  juicio,  ni  la  que  se  mande  verificar  suspenderá  el  procedi- 
miento á  menos  que  resulte  lo  contrario  de  alguna  disposición  especial. 

6  Art.  109.  La  causa,  cuyo  curso  esté  en  suspenso  por  motivos  imputable:*  á  la-s  partes, 
permanecerá  en  el  mismo  estado  hasta  que  algunos  de  los  interesados  en  ella  pida  su  con- 
tinuación. En  este  caso  se  citará  á  la  otra,  ó  á  su  apoderado  sin  que  corra  ningún  término 
mientras  no  conste  haberse  practicado  estas  diligencias. 

cArt.  162.  Cuando  por  ocupación  del  ribunal  ú  otro  motivo  no  principiare  á  verse  la 
c.iusa  el  día  designado  ni  en  ninguno  de  los  ocho  siguientes,  y  tenga  que  sufrir  una  demora 
indefinida,  se  avisarán  las  partes  ó  sus  representantes  el  luievamente  señalado  para  prin- 
cipiar su  vista,  de  la  manera  establecida  en  el  artículo  109,  pero  pudiendo  reducirse  el 
término  que  éste  fija. 


256  COMPANY    GENERAL    OF    THE    ORINOCO    CASE. 

appointed  to  replace  him  on  the  4th  of  August  ;  that  Dr.  Rojas  Paúl 
having  tendered  his  resignation,  another  appointment  was  made  on 
the  7th  of  August  in  the  person  of  Gen.  J.  A. Velutini,  who  was  notified 
of  same,  and  that  the  1 6th  tlay  of  September  had  been  íLxed  for  the  study 
of  the  process. 

It  is  to  be  noted  that  the  sitting  of  court  of  the  16th  of  September 
])roximo  was  the  first  sitting  after  the  vacation  of  the  tril)unals  which 
runs  ñ'om  the  15th  of  August  to  15th  of  September,  and  that  from 
the  7th  to  the  15th  of  August  no  sittings  transpired. 

On  the  16th  of  September  the  trilnuial  met  and  took  cognizance  of 
a  communication  from  General  Velutini,  in  wliich  he  stated  that  he 
could  not  accept,  as  he  had  to  leave  the  city,  and  the  court  then 
appointed  Dr.  Carlos  Grisant i,  who  was  duly  notified,  and  the  19th 
of  the  same  month  was  appointed  for  the  examining  and  stud^-ing 
of  the  case,  three  days  after  Doctor  Grisanti's  aj)pointment.  On 
the  appointed  date  Doctor  Grisanti  took  his  seat  in  court  and  the 
process  began  and  followed  its  course  on  the  21st  and  25th,  on  which 
last-mentioned  day  it  terminated.  It  is  thus  evident  that  the  process 
was  never  under  indefinite  delay,  and  that  the  court  acted  on  the  case 
at  intervals  of  from  two  to  three  days,  appointing  adjuncts  to  fill 
the  vacancy  of  some  of  the  judges,  the  interested  parties  being  in  the 
obliiration  of  calling  on  the  secret arv  of  the  court  in  order  to  take 
knowledge  of  the  acts  of  same. 

In  the  notes  contained  in  the  memorial  presented  by  the  li(|uidators 
of  the  company  to  the  minister  of  foreign  aifairs  at  Paris,  referring  to 
the  evidence  to  be  collected  ])y  the  representative  of  the  company 
regarding  the  process  before  the  liigh  Federal  court,  it  is  stated: 

Mr.  Fiat  was  taken  unaware  by  the  suit  entered  at  court  by  the  fiscal  against  the  com- 
pany for  rescission  of  its  concessions  and  had  no  time  to  ask  for  orders  or  to  collect  informa- 
tion, and  as  no  memorial  had  ever  been  communicated  to  him  and  it  was  impossible  to 
foresee  that  sucii  action  would  be  entered  against  the  company,  he  had  received  no  instruc- 
tions from  Paris.  Mr. Fiat, being  verj-  mucii  perplexed, presented  a  list  containing  tlie  names 
of  all  the  employees  of  the  company  to  l)e  examined  by  the  court,  but  not  knowing  their 
whereabouts  he  set  them  all  as  residing  in  Paris.  The  petition  of  Mr.  Fiat  was  inspired  by 
the  report  which  the  administration  of  thó  company  had  just  fonvarded  to  the  ministrj-  of 
fomento.  The  tribunal  accepted  Mr.  Fiat's  petition,  but  instead  of  forwarding  the  com- 
missions to  Paris,  as  was  done  with  those  to  Rome,  by  the  diplomatic  channel,  according  to 
international  rules,  they  were  handed  directly  to  Mr.  Fiat  for  transmission  to  Mr.  Delort. 
Nothing  could  be  more  strange,  and  side  by  side  to  a  proceeding  whicii  apju-ai-s  to  In»  regular 
at  iii-st  sigi)t  there  arc  irregularities  which  nullify  the  defense,  and,  finally,  the  judgment  was 
pa.s.sed  without  .sunmioning  the  defendant,  as  has  l)een  seen  l)y  the  document  No.  1.  Mr. 
Delort  delivered  the  commi.ssions  i.ssued  by  the  court  to  the  i)()ard  of  direct oi-s  of  the  com- 
pany, who  were  unable  to  do  anything  with  them  and  returned  them  to  their  counsel  in 
Caracas,  Dr.  D.  B.  Urbaneja,  and,  following  the  advice  of  their  coun.sel.  the  lionrd  had  ulii- 
davits  made  by  such  witncs.ses  as  could  U>  found,  on  th(>  .sul)ject  of  the  conunis-sion  issue<l 
by  court  to  the  judge  of  first  instance  of  Paris. 

The  statement  that  Mr.  Fiat  was  taken  imawiires  by  the  suit  enler.Ml 
by  the  fiscal  })eforc  the  liigh  Fedciid  c(»iu-t  jind  that  he  luid  no  time  to 


OPINION    OF    VENEZUELAN    COMMISSIONER.  257 

ask  for  order  and  information  regarding  the  evidence  is  contradictory 
of  the  fact  that  j\Ir.  Fiat  was  summoned  on  the,  30th  of  May,  1890, 
to  appear  in  court  and  take  cognizance  of  the  action  entered  against 
the  company,  and  that  it  was  only  on  the  7th  of  August,  two  months 
and  eight  days  after  he  had  been  summonetl,  that  he  entered  a  petition 
to  the  tribunal  for  the  collection  of  evidence.  As  to  the  action  of  the 
court  in  handing  over  to  Mr.  Fiat  the  commissions  to  Paris  and  Rome, 
instead  of  forwarding  same  through  the  diplomatic  channel  it  is  simply 
reckless  and  capricious  to  consider  such  action  as  an  irregular  omis- 
sion. The  Code  of  Civil  Procedure,  in  article  205,  on  the  extraordi- 
nary term  for  collecting  evidence,  says: 

If  one  of  the  contending  parties  who  has  obtained  permission  for  collecting  evidence,  as 
per  the  terms  of  the  foregoing  article,  fails  to  do  the  necessary  to  obtain  same,  or  if  it  appear 
'rom  the  records  that  he  made  a  malicious  petition  in  order  to  extend  the  duration  of  the  suit, 
he  shall  be  fined  with  an  amount  equivalent  to  one-fifth  of  the  value  of  the  suit,  wliich  sum 
will  be  appUed  to  pay  to  the  other  party  whatever  damages  he  may  have  sufl'ered  by  the 
delay.a 

It  was  the  interested  party  who  should  have  taken  the  necessary 
steps  in  order  to  have  forwarded  the  commissions  to  the  judge  of  the 
Seine  through  the  diplomatic  channel,  and  his  having  neglected  to  do 
so  could  have  been  cause  of  his  being  fined,  as  per  the  article  205 
quoted,  as  he  petitioned  for  the  collection  of  evidence  wliich  required 
an  extraterritorial  term  and  thus  lengthened  the  period  of  the  suit, 
and  he  did  not  do  the  necessary  to  collect  the  evidence.  It  is  well 
known  that  these  commissions  are  accepted  b}'  the  judges  to  whom 
they  are  addressed  by  courtesy  in  accordance  Avith  international  use. 
In  some  international  treaties  these  commissions  have  been  regulated, 
but  failing  this  the  rule  to  be  followed  is  that  of  reciprocity.  There 
is  no  agreement  on  this  point  between  Venezuela  and  France,  and  it 
was  therefore  necessary  to  adhere  to  Venezuela's  legislation  on  the 
subject,  to  which  article  559  of  the  Code  of  Civil  Procedure  at  the 
time  in  force  is  pertinent.     This  article  states: 

Commissions  issued  by  foreign  tribunals  for  the  examination  of  witnesses  for  valuations, 
oaths,  interrogatories,  and  any  other  such  acts  to  be  eifected  in  the  Republic,  will  bo  car- 
ried into  execution  by  virtue  of  a  simple  decree  from  the  judge  of  first  instance  of  the  locality 
where  such  acts  are  to  take  place.'' 

«Art.  205.  Si  cl  litigante  que  ha  obtenido  concesión  para  evacuar  las  pruebas  de  que 
habla  el  artículo  precedente  no  practicare  las  diligencias  consiguientes,  6  de  lo  actuado 
apareciere  que  la  .solicitud  fué  maliciosa,  con  el  objeto  de  alargar  el  pleito,  se  le  impondrá 
una  multa  equivalente  á  la  quinta  parte  del  valor  de  lo  que  se  litigue,  y  se  aplicará  á  la 
parte  contraria  en  indemización  de  los  perjuicios  sufridos  con  la  dilación.  Si  ni  apro.xima- 
damente  fuere  conocido  este  valor,  será  la  multa  de  una  cantidad  que  no  baje  de  quinientos 
bolívares  ni  exceda  de  cinco  mil,  con  la  misma  aplicación. 

í'Art.  559.  Las  providencias  de  los  tribunales  extranjeros  concernientes  al  examen  de 
testigos,  experticias,  juramentos,   interrogatories  y  otros  actos  de  mera  instrucción  que 
hayan  de  practicarse  en  la  república,  se  ejecutaráii  con  el  simple  decreto  del  juez  de  i)ri- 
mera  instancia  que  tenga  jurisdicción  en  el  lugar  cu  (lue  hayan  de  verilicai-se  tales  actos. 
S.  Doc.  533,  59-1 17 


258  COMPANY    GENERAL    OF   THE    ORINOCO    CASE. 

This  is  ill  accordance  mth  the  most  advanced  principles  of  jurispru- 
dence on  the  matter. 

The  Institute  of  International  Law,  during  the  Zurich  session,  has 
established  the  following  princii)lcs  and  rules,  which  are  highly  favor- 
able to  the  prompt  expedition  of  justice: 

Any  judge  may  in  any  process  address  himself  by  rogatory  commissions  to  any  foreign 
judge,  requesting  him  to  carrj-  into  execution  in  his  jurisdiction  any  act  of  instruction  or 
any  other  judicial  acts  to  which  the  inteiTcntion  of  a  foreign  judge  may  be  useful  or  indis- 
pensable. A  judge  to  whom  a  petition  is  addressed  in  order  that  he  may  issue  a  rogatory 
commission  has  to  decide  in  the  following  points:  First,  of  his  capacity  in  the  matter;  sec- 
ond, on  the  legality  of  the  petition;  third,  whether  or  not  it  is  opportune  in  cases  where  the 
acts  petitioned  for  can  be  effected  by  the  judge  under  whose  guidance  the  suit  is,  such  as  the 
examination  of  witnesses,  taking  of  oaths  of  one  of  tlie  parties,  etc.  The  rogatorj-  com- 
mission shall  he  sent  directly  to  the  foreign  tribunal  unless  the  interested  governments  may 
afterwards  intervene  in  case  it  be  necessary.  The  tribunal  whicli  receives  the  commission  is 
under  obligation  to  comply  ^vith  it  after  having  ascertained  the  following:  First,  the  authen- 
ticity of  the  document;  second,  its  own  capacity,  ratione  materiae,  according  to  the  laws  of 
the  country.  (Annual  of  the  Institute  of  International  Law,  Volume  II,  1S78,  pp.  I.tO 
and  151.)a 

There  was,  consequently,  nothing  irregular  in  the  proceedings  of  the 
court  in  addressing  directly  the  judge  of  the  first  instance  of  the  Seine 
and  in  handing  the  commissions  to  the  interested  party  for  its  conipli- 

oThe  rules  proposed  by  the  Institute  of  International  Law  at  Zurich  in  1877,  were  as 
follows: 

1.  L'étranger  sera  admis  à  ester  en  justice  aux  mêmes  conditions  que  le  régnieole. 

2.  Les  formes  ordinatoires  de  l'instruction  et  de  la  procédure  seront  régies  par  la  loi  du  lieu  où  le 
procès  est  instruit.  Seront  considérées  comme  telles,  les  prescriptions  relatives  au.x  formes  de 
l'assignation  (sauf  de  qui  est  proposé  ci-dessous,  2""-  al.),  aux  délais  de  comparution,  à  la  nature  et  à 
ia  forme  de  la  procuration  ad  ¡item,  au  mode  de  recueillir  les  preuves  à  la  rédaction  et  au  prononcé 
du  jugement,  à  la  passation  en  force  de  chose  jugée,  aux  délais  et  aux  formalités  do  l'appel  et  autres 
voies  de  recours,  à  la  péremption  de  l'instance. 

Toutefois,  et  par  exception  à  la  règle  qui  pré-cède,  on  pourra  statuer  dans  les  traités  que  lesfissig- 
nations  et  autres  exploits  seront  signifiés  aux  personnes  établies  à  l'étranger  dans  les  formes  pre- 
scrites par  les  lois  du  lieu  de  destination  de  l'exploit.  Si,  d'après  les  lois  de  ce  pays,  la  signification 
doit  être  faite  par  l'intermédiaire  de  juge,  le  tribunal  appelé  à  connaître  du  procès  requerra  l'inter- 
vention du  tribunal  étranger  par  la  voie  d'une  commission  rogatoire. 

:$.  L'admissibilité  des  moyens  de  preuve  (preuve  littérale,  testimoniale,  serment,  livres  de  com- 
merce, etc.)  et  leur  force  probante  seront  déterminées  par  la  loi  du  lieu  où  s'est  passé  le  fait  ou  l'acte 
qu'il  s'agit  de  prouver. 

La  même  règle  sera  appliquée  à  la  capacité  des  témoins,  sauf  les  exceptions  que  les  Etats  contrac- 
tants jugeraient  convenable  de  sanctionner  dans  les  traités. 

4.  Le  juge  saisi  d'un  procès  pourra  s'adresser  par  commission  rogatoire  à  un  juge  étranger,  pour  le 
prier  de  faire  dans  son  ressort  soit  un  acte  d'instnUction,  soit  d'autres  actes  judiciaires  pour  le.>iqufls 
l'intervention  du  juge  étranger  serait  indispensable  ou  utile. 

.">.  lycjuge  à  qui  l'on  demande  de  délivrer  une  Commission  rogatoire  déiide:  (a)  de  sa  propre  compi'-- 
tence;  (b)  de  la  légalité  de  la  requête;  (c)  de  son  opportunité  lorsqu'il  s'agit  d'un  acte  (pii  légalement 
peut  aussi  .se  faire  devant  le  juge  de  procès,  p.  ex.  d'entendre  des  ti'moins,  de  faire  prêter  serment  à 
l'une  des  parties,  etc. 

11.  La  commission  rogatoire  sera  adressée  directement  au  tribunal  étranger,  .sauf  intervention  nlté'- 
rieure  des  gouvernements  intéressés,  s'il  y  a  lieu. 

7.  Le  tribunal  il  ([ui  la  commission  est  adressée  sera  obligé  d'y  .satisfaire  apn'-s  s'être  assuré:  1"  de 
l'authenticité  du  «loeument,  '.'"  de  su  propre  compétence  rntionr  iiiiittri:r  d'après  les  lois  du  jiays  où 
il  siège. 

.S.  Eneas  d'incompétence  matérielle, le  tribunal  reciuis  transmettra  la  commission  rogatoire  au  tri- 
bunal compétent,  après  en  avoir  informé  le  retiuérant. 

y.  Le  tribunal  qui  procède  i\  un  acte  judiciaire  en  vertu  d'une  c(unmission  rogatoire  applique  les  lois 
<li'  son  pays  en  ce  (pli  concerne  les  formes  du  j)rocès,  y  compris  les  formes  des  i)n'uves  et  du  serment. 
(.\nnuaire  de  l'Institut  de  Droit  Internatioiiiil.  Toni.  ii.  i>.  \M);  Itevue  de  l>roit  International,  etc. _^ 
Vol.ix,p.  308.) 


OPINION    OF    VENEZUELAN    COMMISSIONER.  259 

ance.  If  the  C'Ompagnio  Générale  de  rüréno(|ue  did  not  in  due  time 
see  that  its  representatives  in  Paris,  Rome,  and  Port  of  Spain  attended 
to  the  execution  of  the  commissions  and  allowed  them  to  keep  the 
documents  in  their  ])()ssession  for  an  indefinite  ])eriod,  it  is  an  act  for 
the  conscfiuences  of  which  the  company  is  solely  and  exclusively  respon- 
sible. To  pretend  that  the  other  party  in  the  litis  shall  bear  any 
responsibility  on  the  matter  is  entirely  contrary  to  common  sense  and 
to  ecjuity. 

As  has  been  shown,  besides  the  absolute  lack  of  legal  basis  of  the 
charges  preferred  by  tlie  li(|uidators  of  the  Compagnie  Générale»  de 
rOréno([ue  against  the  proceedings  of  the  court  and  the  judgment 
passed  by  that  high  tribunal  on  the  14th  of  October,  1891,  there  is  the 
remarkable  circumstance  that  neither  the  company  nor  its  legal  repre- 
sentatives denounced  the  sentence  as  null  and  void  wdthin  the  period 
and  in  the  form  established  in  Part  XVII  of  the  Code  of  Civil  Proce- 
dure then  in  force.     Article  538  of  said  code  says: 

Suits  may  be  invalidated  by  the  following  causes:  First,  when  one  of  the  contending 
parties  has  not  had  a  hearing  in  the  suit  whose  invalidation  is  intended  or  by  the  want  of 
summons  in  cases  where  such  summons  is  necessary  for  the  continuation  or  for  the  decision 
of  the  suit  and  whenever  this  fault  has  not  been  remedied  by  the  party  alleging  the  same.» 

Article  549  says: 

The  claim  of  invahdation  by  any  of  the  parties  shall  not  interfei-e  with  tlie  execution  of 
the  sentence.  i> 

Article  550  says: 

The  claim  of  invalidation  can  not  be  made  six  months  after  the  party  has  had  knowledge 
of  the  suit  in  which  he  has  not  obtained  a  hearing  or  of  the  sentence  or  order  issued  in  the 
suit  when  it  was  in  suspense. c 

And  article  551  runs  thus  : 

When  an  invalidation  is  pronounced,  the  trial  shall  commence  again  from  the  begiiming 
in  case  there  may  have  been  a  lack  of  hearing  of  the  claiming  party,  and  from  the 
moment  that  a  lack  of  summons  took  place  in  case  this  lack  of  summons  be  the  cause  of  the 
invalidation,  d 

«Art.  538.  Son  causas  para  la  invalidación  de  los  juicios: 

la.  La  falta  de  audiencia  en  el  juicio  cuya  invalidación  se  pretende,  ó  la  falta  d(^  cita- 
ción cuando  ésta  sea  necesaria  para  continuarlo  ó  decidirlo,  si  no  lia  sido  cul)iert  a  la  falta 
por  la  parte  cjue  la  alega. 

í'Art.  549.  El  reclamo  de  invalidación  no  impide  la  ejecución  de  la  sentencia. 

cArt.  550.  Tampoco  puede  intentarse  trascurridos  seis  meses  desde  c^ue  se  descubriii  la 
falsedad  del  documento,  ó  se  tuvo  prueba  de  la  retención  ó  del  hacho  de  la  parte  contra- 
ria, ó  desde  el  día  en  que  se  pronunció  la  sentencia  en  caso  de  pronunciamiento  sobre  cosa 
no  demandada  ú  omisión  respecto  de  lo  demandado,  ó  desde  que  llegó  á  noticia  del  reda- 
mante el  juicio  en  que  no  fué  oído,  ó  la  sentencia  ó  auto  que  se  dictó  en  el  juicio  que  estaba 
paralizado,  ó  desde  que  se  tuvo  conocimiento  de  la  sentencia  anterior  que  está  en  colisión 
con  la  pronunciada. 

dArt.  551.  Declarada  la  invalidación,  el  juicio  se  repone  al  estado  de  demanda  cuando 
ha  habido  falta  de  audiencia  del  reclamante,  y  el  estado  en  que  se  cometió  la  falta  de  cita- 
ción, cuando  es  ésta  la  fundamento  do  la  invalidación.  En  el  caso  de  colisión  de  senten- 
cias, quedará  con  su  fuerza  la  primera.  En  los  demás  casos,  se  repondrá  al  estado  de 
sentencia. 


260  COMPANY    GENERAL    OF    THE    ORINOCO    CASE. 

In  the  memorial  presented  by  the  Hquidators  of  the  company  to  the 
minister  of  foreign  affairs  of  France  on  the  3<l  of  December,  1895,  they 
state,  on  page  69,  the  following: 

Nothing  exists,  therefore,  which  may  give  light  on  the  sentence  pronounced  by  the  high 
Federal  court  on  the  14th  of  October,  1891,  which  was  published  on  the  17th,  three  days 
after,  in  the  Official  Gazette,  No.  538.5.  It  was  by  this  publication  that  the  counsel,  Drs.  I). 
B.  Urbaneja  and  Ramón  F.  Feo,  came  to  know  of  it.  When  Mr.  Delort  arrived  at  Caraca.s 
on  the  2títh  of  October,  the  whole  matter  had  been  completed.  Mr.  Delort  hastened  to 
Doctors  I'rbancja  and  Feo  for  advice,  and  these  counsel  told  him  tliat  tliere  was  nothing 
to  do  but  to  apply  to  the  French  Government,  which  had  authority  to  intervene  and  to  present 
a  claim  through  the  diplomatic  channel  by  virtue  of  article  5  of  the  diplomatic  convention 
of  1885. 

It  was  therefore  the  opinion  of  the  counsel  of  the  company  that 
according  to  the  law  on  this  matter  no  claim  of  invalidation  of  the 
sentence  could  be  entered  in  court,  although  the  term  of  six  months 
granted  by  law  for  for  this  purpose  was  still  running.  .Mr.  Delort,  as 
well  as  the  other  representatives  of  the  company,  submitted  to  thi.s 
opinion  of  the  counsel,  and  in  no  time  did  they  take  action  to  enter  a 
claim  of  invalidation,  thus  affirming  the  sentence  pronounced  by  the 
court. 

According  to  the  liquidators,  when  referring  to  Mr.  Delort  the  coun- 
sel advised  the  company  to  make  use  of  the  diplomatic  channel  by 
virtue  of  article  5  of  the  diplomatic  convention  of  1885,  not  taking  into 
account  that  article  5  of  said  convention  runs  thus: 

The  representatives  of  the  high  contracting  parties  shall  not  inten'ene  in  claims  or  griev- 
ances of  private  parties  referring  to  matters  pertaining  to  the  civil  or  penal  administration 
of  justice,  according  to  the  local  laws  unless,  in  case  of  denial  of  justice  or  of  judicial  delays 
contrary  to  use  and  to  law,  or  in  case  of  the  noncompliance  with  an  afhrtiied  sentence,  and, 
finally,  in  case  there  be  an  evident  violation  of  a  treaty  or  of  the  rules  of  international  law 
in  spite  of  the  exhaustion  of  the  legal  remedies. 

The  invalidation  of  the  judgment  passed  by  the  high  Federal  coiu-t 
was  a  matter  ])ertainmg  to  the  jurisdiction  of  the  civil  justice  of 
Venezuela,  according  to  its  legislation.  The  company  did  not 
exhaust  all  the  legal  means  which  the  laws  of  the  country  offered  for 
the  hivalidation  of  the  sentence,  acting  on  the  advice  of  her  coimsel, 
in  whose  opinion  it  was  useless  to  do  anj^thing  in  the  matter.  Although 
the  company  did  not  exhaust  these  legal  means  and  although  the 
sentence  was  not  in  violation  of  any  treaty  nor  of  any  rule  of  inter- 
national law,  article  5  of  the  convention  of  November  20,  1SS5,  was 
invoked  four  years  after,  thus  pretending  to  insure  the  possibility  of 
intervention  by  the  diplomatic  representatives  of  France. 

From  the  documents  presented  by  the  li(iuidators  of  the  conipany  it 
appears  that  from  the  14th  of  October,  1S91.  on  which  day  the  sen- 
tence was  |)ronoiiiH'ed  by  the  high  Federal  court,  until  the  i\n\  when 
the  French  commissioner  handed  ovei'  to  the  \'ene/iielan  coniinissioner 
copies  of  the  memorial  presented  by  the  said  licpiidators  to  the  minis- 


OPINION    OF   VENEZUELAN    COMMISSIONER.  261 

ter  of  foreign  affairs  of  France  on  the  3d  of  December,  1895,  together 
with  annexed  papers,  the  diplomatic  representatives  of  France  in 
Venezuela  never  intervened  in  favor  of  anj'  claim  whatever  presented 
by  the  liquidators  of  the  Compagnie  Générale  de  l'Orénoque.  It  is  to 
be  observed,  on  the  other  hand,  that  in  a  dispatch  addressed  l\y  said 
liquidators  on  the  12th  of  September,  1901,  to  his  excellency  the 
minister  of  foreign  affairs  of  France,  they  say — 

that  they  have  been  informed  from  Caracas  that  Mr.  Quiévreux,  the  vice-consul  of  France 
in  that  city,  who  is  in  cliarge  of  all  tiie  business  of  the  Frencli  legation,  is  possessed  of  no 
document  whatever  concerning  the  claim  of  the  Compagnie  Générale  de  l'Orénoque,  for  which 
reason  he  has  been  unable  to  attend  to  it,  and  they  therefore  request  his  excellency  kindly 
to  transmit  to  Caracas,  if  necessary,  all  the  papers  referring  to  their  claim. 

It  is  therefore  perfectly  evident  that  the  diplomatic  representatives 
of  France  have  abstained  from  all  intervention  tending  to  the  invali- 
dation of  the  aforesaid  sentence  during  a  long  period  of  years,  and 
especially  so  during  the  term  of  four  jeñTs  that  elapsed  from  the  day 
on  which  the  sentence  was  pronounced  to  that  on  which  political 
relations  were  suspended  between  France  and  Venezuela  in  1895. 

What  action  did  the  liquidators  or  the  representatives  of  the  com- 
pan}^  ever  take  during  all  the  years  following  that  of  the  sentence  to 
make  good  their  assumption  that  the  judgment  passed  was  a  notorious 
injustice  or  a  denial  of  justice  ? 

The  liquidators'  memorial  of  December,  1895,  to  the  minister  of 
foreign  affairs  of  France  states  the  facts  of  the  case  in  a  precise  man- 
ner and  defines  the  attitude  assumed  by  the  company  during  several 
years  in  consequence  of  the  sentence  that  rescinded  her  concessions 
and  condemned  her  to  the  payment  of  a  sum  of  money  and  the  costs 
of  the  suit.  Under  the  title  of  "Applications  made  by  the  Company 
to  the  Government  of  Venezuela,"  the  aforesaid  memorial  contains 
the  following  narrative: 

From  the  year  1891,  or  nearly  four  years  back,  all  applications  made  to  the  Venezuelan 
Government,  in  order  to  obtain  a,  friendly  compromise,  that  is  to  say,  to  obtain  an  indemnity, 
have  been  of  no  avail.  In  1892  there  was  a  revolution  in  Venezuela  and  the  Government 
declined  to  transact  any  business  on  the  plea  of  the  political  situation.  In  1893  General 
Crespo  came  into  power,  and  during  his  first  year  of  provisional  government  all  applications 
made  b^'  the  company  were  deferred  until  the  establishment  of  a  constitutional  government. 
General  Crespo  was  elected  as  constitutional  president  for  a  term  of  four  years  on  the  20th  of 
February,  1894.  In  the  month  of  May  of  tliat  same  year  Mr.  Delort,  who  was  going  to  the 
Pacific  coast,  called  at  Caracas  to  present  his  salutations  to  General  Crespo  and  to  General 
Velutini.  This  last  named  was  at  the  time  very  powerful,  and  Mr.  Delort  explained  to  him 
the  desirability  of  arriving  to  a  friendly  understanding  and  to  come  to  terms  as  to  the  indem- 
nity whicii  the  Compagnie  Générale  de  l'Orénoque  pretended.  General  Velutini  expressed 
to  Mr.  Delort  his  willingness  to  assist  him  in  this  direction,  and  suggested  that  Mr.  Delort 
procure  from  France  the  ncces.sary  power  of  attorney  wliich  would  give  him  suTicient 
authority  for  deahng  with  this  matter.  On  the  25th  of  October,  189 1,  Mr.  Delort  returned 
to  Caracas,  where  full  power  of  attorney'  had  been  sent  to  him,  but  General  Velutini  was  then 
in  a  very  diíTerent  frame  of  mind  and  Mr.  Delort  was  unable  to  secure  the  slightest  coopera- 
tion from  him.     Mr.  Delort  then  decided  to  apply  directly  to  General  Crespo,  wiio  at  the  time 


262  COMPANY    GENERAL    OF   THE    ORINOCO    CASE. 

was  in  his  country  seat  at  Maracaibo.  General  Crespo  assured  Mr.  Deloit,  that  if  tht  com- 
pany had  really  any  rights,  justice  would  be  done  to  it.  At  this  juncture  Mr.  Delort  presented 
to  Dr.  P.  E.  Rojas,  the  then  minister  of  foreign  affairs,  a  report  briefly  stating  all  flie  facts 
and  the  rights  claimed  by  the  company.  Doctor  Rojas  promised  to  examine  said  document 
carefully,  for  which  purpose  he  asked  for  a  time  of  two  months.  As  Mr.  Dchjrt  could  not 
await  in  Caracas,  he  informed  the  minister  that  he  would  come  back  to  Caracas  in  February 
or  March,  1895.  He  did  return  to  Venezuela  on  the  24th  of  May,  and  heard  at  LaCîuayra 
when  he  landed  of  the  rupture  of  diplomatic  relations  between  France  and  Venezuela,  which 
had  just  taken  place.  A  translation  of  this  document  presented  by  Mr.  Delort  to  the  min- 
ister of  foreign  affairs  of  Venezuela  in  November,  1894,  has  been  deposited  at  the  ministry 
of  foreign  affairs  in  Paris.  That  document  was  drafted  without  possessing  full  knowledge 
of  all  the  records  of  the  trial  that  took  place  before  the  high  Federal  court  against  the  Com- 
pagnie Générale  de  rOrénoque,  and  certain  details  are  therefore  wanting  in  .-^aid  document 
(which  are  contained  in  this  memorial),  altliough  the  conclusions  of  said  petition  remain  in 
their  full  force. 

From  the  foregoing;  quotation  it  will  be  seen  that  the  action  taken 
b}"  the  representatives  of  the  Compagnie  Générale  de  l'Orénoqiie  in 
liquidation  in  the  four  years  subsequent  to  the  sentence,  during  which 
time  the  diplomatic  relations  between  France  and  Vene/Aiela  were  on  a 
friendly  footing,  was  simply  of  a  friendly  and  ])rivate  nature  with  j)ri- 
vate  and  influential  individuals  and  officials  for  the  purpose  of  obtain- 
ing a  friendly  compromise  of  pecuniary  advantage  to  the  company,  no 
diplomatic  action  whatever  having  taken  place  during  that  time. 
The  record  presented  to  Dr.  P.  E.  Kojas,  minister  of  foreign  affairs,  was 
not  effected  in  an  official  manner,  and  no  allusion  whatever  is  made 
which  may  convey  the  idea  that  it  was  presented  by  the  re])resentative 
of  France  in  Venezuela,  who  was  the  properly  qualified  party  to  com- 
municate on  this  matter  with  the  minister  of  foreign  affairs.  The 
document  in  question  does  not  exist  in  the  archives  of  the  ministry  o- 
foreign  affairs,  and  it  is  to  be  presumed  that  a  document  annexed  to 
the  record  presented  to  this  commission,  marked  ''No.  106,"  contain- 
ing 37  pages  \\TÍtten  in  Spanish  without  any  signature,  dated  121  h  of 
November,  1894,  which  is  said  to  have  been  addressed  to  the  minister 
of  foreign  affairs,  is  the  very  same  report  presented  by  Mr.  Delort  to 
Doctor  Rojas,  who  may  have  returned  it  to  the  former. 

This  document,  which  is  not  even  signed  by  the  ])ers()n  who  ])re- 
sented  it,  is  simply  a  narrative  of  facts  which  took  ])lace  from  the  time 
of  the  concessions  from  which  the  Compagnie  Générale  de  TOrénocpie 
originated  and  of  comments  on  the  diplomatic  incident  between 
Vene/Aiela  and  Coloinl)ia  caused  by  the  ])ublicati()n  made  in  Paris  by 
the  Compagnie  Générale  de  l'Orénoque  of  a  rei)ort  antl  geograi)hical 
chart  which  comprised  a  zone  of  land  which  was  sub  litis  between 
Venezuela  and  Colombia,  on  the  real  ownershi])  of  which  judgment  was 
pending  from  the  Sj)anish  Ciovernment  according  to  the  treaty  of 
arbitration  juris  of  the  14th  of  September,  1881.  This  dociunent  of 
report  contains  the  following  among  other  statements: 

In  .short,  an  association  was  formed  by  a  group  of  well-known  honorable  French  citizens 
who  placed  reliance  on  the  good  faith  of  Venezuela,  whoso  word  was  solemnly  pledged  by  a 


OPINION    OF    VENEZUELAN    COMMISSIONER.  263 

contract  drawn  according  to  its  laws  for  carrying  into  execution  an  arduous  enterprise, 
which  was  chiefly  to  be  to  the  honor  and  l)enciit  of  the  country.  Some  very  important  woriv 
was  done,  as  well  as  the  very  difTicult  task  of  estahlishiiig  steam  navigation  between  Ciudad 
Bolívar  and  Brazil.  But  the  Venezuelan  Government,  which  had  pledged  their  signature 
either  by  error  or  by  omis.sion,  realizing  then  by  the  urgent  claims  of  Colombia,  as  well  as 
by  the  arbitration  sentence  pronounced  by  Spain,  that  they  had  had  no  right  to  grant  con- 
cessions on  territory  which  they  did  not  possess,  found  no  other  way  for  withdrawing  from 
an  awkward  position  than  to  rescind  tiieir  contract  with  the  company,  taking  no  heed  of 
the  serious  damages  caused  by  such  an  action  to  the  other  party  in  th(!  contract.  It  is  there- 
fore but  just  and  equitable  as  well  as  honorable  for  the  Republic  that  this  group  of  foreigners 
who  brought  their  capital  to  tiiis  country  in  good  faith  under  a  contract  .should  receive  an 
indemnity  for  damages  they  have  sustained. 

Further  in  the  report  it  is  stated  : 

There  can  be  no  doubt  as  to  the  responsibility  inherited  by  this  Government  from  the  for- 
mer administration,  owing  to  the  want  of  loyalty  shown  at  the  time  the  contract  loasdrawn  xohere 
the  Colombian  claim  was  kept  in  concealment  and  allowing  the  company  to  proceed  with  its 
work  to  invest  its  capital  and  to  make  colossal  efforts  in  order  to  comply  with  its  obliga- 
tions, and  owing  to  the  proceedings  of  the  Government  even  before  the  malicious  and  ba.sele.ss 
suit  for  rescission  of  the  contract  was  entered  and  had  been  sentenced  by  the  high  Federal 
court  proceedings,  which  were  contrary  to  law,  to  universal  justice,  to  all  sound  principles, 
and  to  the  very  interest  of  the  country,  and  by  tlie  force  of  which  the  compau}'  was  ruined 
and  all  the  elements  of  progress  and  civilization  which  were  to  benefit  and  improve  those 
territories  were  misapplied  and  frittered  away. 

The  violent  language  used  in  this  report  and  the  offenses  therein 
addressed  to  the  Government  of  the  Republic  explain  why  it  was  that 
the  same  was  returned  to  its  author  and  why  no  traces  were  left  of  its 
passage  through  the  hand  of  the  minister  of  foreign  affairs. 

To  refute  the  assertions  contained  in  said  report  with  reference  to 
the  boundary  question  with  Colombia,  it  will  be  sufficient  to  quote  in 
extenso  the  reply  of  Mr.  Delort  on  the  23d  of  September,  1888,  to  the 
minister  of  fomento,  when  the  former  was  asked  by  the  latter  to  explain 
the  cause  of  the  publication  made  by  the  company  in  Paris  of  a  report 
and  a  map  in  which  a  certain  territory  which  had  been  submitted  to  the 
decision  of  an  arbitrator  appointed  by  Venezuela  and  Colombia  appeared 
as  having  been  granted  to  the  Compagnie  Générale  de  VOrénoque  by  the 
Government  of  Venezuela. 

The  dispatch  of  the  minister  of  fomento  to  which  Mr.  Delort  replied 
is  as  follows  : 

No.  452.]  Department  of  Territorial  Wealth, 

Caracas:,  18  Septembe?-,  1888, 
To  Mr.  Delort, 

Concessionary  for  the  Exploitation  of  the  Territories  Upper  Orinoco  and  Amazonas. 
llnder  date  of  15th  instant  the  minister  of  foreign  an"airs  has  officially  transmitted  the 
following  to  this  ministry: 

"Caracas,  15th  ¡September,  18<s,s. 
"Sir:  The  envoy  extraordinary  of  Colombia  has  entered  a  claim  against  the  publica- 
tion of  a  geographical  chart  and  a  report  by  the  Compagnie  Générale  de  rüréno(|ue  of  the 
Upper  Orinoco  and  Amazonas,  containing  a  description  of  the  boundaries  of  their  conces- 
sions in  which  are  comprised,  as  granted  to  said  company,  vast  territories  which  are  sub 


264  COMPANY    GENERAL    OF   THE    ORINOCO    CASE, 

life  bptwocn  Colombia  and  Venezuela.  Consequently  and  with  a  view  to  examine  said 
report  and  chart,  I  trust  that  you  will  remit  them  to  me,  if  you  are  possessed  with  them,  or 
that  you  will  kindly  request  the  representative  of  the  company  to  furnish  you  with  same, 
as  well  as  with  his  own  report  on  the  subject,  should  these  documents  not  exist  in  your 
office.  I  transmit  this  communication  to  you  in  order  that  you  remit  to  me  the  informa- 
tion required. 

"(Signed)  Coronado." 

Mr.  Delort's  reply  is  as  follows: 

"  C.\RACAS,  20th  September,  1S8S. 
"  To  Minister  of  Fo.mento. 

'■  Monsieur  le  Ministre:  I  have  had  the  honor  to  receive  your  dispatch  dated  the  18th 
instant,  to  which  I  now  reply.  When  the  company  of  the  Upper  Orinoco  was  formed  a 
report  was  drafted  in  Paris  for  distribution  only  among  the  shareholders.  In  said  report 
the  concessions  tran.iferred  to  the  companij  bif  Mr.  Tejera  were  inserted  as  well  as  an  abstract 
of  the  articles  of  a.ssociation  and  divers  information  on  the  natural  products  to  be  exploited 
as  per  the  terms  of  the  contract.  To  that  report  a  niap  was  annexed  in  order  that  the  share- 
holders should  know  tlie  location  of  the  territories  granted  to  the  company/or  exploitation. 
That  map  is  a  copy  of  the  one  annexed  to  the  statistical  bulletin  published  in  several  lan- 
guages by  the  Government  of  Venezuela.  This  report  does  not  deal  with  the  boundaries 
between  Colombia  and  Venezuela  nor  vnth  a  vast  expanse  of  territory  granted  to  the  company, 
but  only  with  the  natural  products  of  the  extenswe  region  of  the  Upper  Orinoco  and  Amazonas. 
The  company  hnows  that  the  boundaries  between  Colombia  and  Venezuela  are  sub  litis,  sub- 
mitted to  the  arbitration  of  the  Spanish  Government.  The  company  therefore  lays  no  claim 
on  this  point;  and  as  she  holds  her  concession  from  the  Government  of  Venezuela,  she  is  veil 
aware  that  she  has  to  conform  to  the  final  boundary  fixed  to  the  Republic.  Up  to  the  present 
time  the  company  has  extended  her  exploitation  only  to  localities  under  the  jurisdiction  uf 
Venezuelan  authorities  and  her  agencies,  stores  and  others  are  situated  at  Atines,  Maipures, 
San  Fernando,  San  Carlos,  and  the  Brazilian  boundary',  and  our  steamboats  are  plying  only 
on  the  Orinoco,  the  Casiquaire,  and  the  Guainia.  I  regret  not  to  be  able  to  send  you  the 
report  referred  to,  but  two  copies  of  same  must  have  been  forwarded  to  you  by  the  agent 
of  the  company  in  this  city  and  should  be  in  j-our  possession.  I  trust,  Mon.sicur  le  Ministre, 
that  the  explanation  which  I  have  the  honor  to  submit  to  you  will  be  .satisfactory,  and  I  tn.i.st 
as  well  that  you  vñll  appreciate  our  good  faith  on  this  matter. 

"With  the  highest  consideration,  I  remain,  Monsieur  le  Ministre. 

"(Signed.)  Tu.  Delort." 

If  the  wording  of  this  communication  is  compared  with  that  of  the 
report  addressed  by  the  very  same  representative  of  the  company  in 
1894  to  the  minister  of  foreign  affairs  of  Venezuela  and  with  that  of 
the  memorial  addressed  in  1895  by  the  li([uidators  of  the  ('oin]>any 
to  the  minister  of  foreign  affairs  of  France,  when  reference  is  made 
in  both  documents  to  the  boundary  question  with  Colombia,  the  acts 
of  the  representatives  of  the  company  may  be  appreciated  in  their 
true  meaning  and  value;  but  in  spite  of  all,  the  plain  and  steailfast 
avowal  made  by  the  representative  of  the  company  remains  unaltered, 
viz — 

that  the  company  knows  that  the  boundaries  between  C\)lombia  and  Venezuela  are  sub  lite 
submitted  to  the  arbitration  of  tiic  King  of  Spain,  and  tliat  tlie  company,  therefore,  lays  no 
claim  on  tliis  heading  and  is  well  aware  that  siio  lias  to  conform  to  the  l)oun(iarics  wliich 
ma}'  be  definitely  fixed. 

Nor  could  the  company  be  ignorant  of  this,  as  she  had  been  iinaliy 
constituted  on  the  I'Jth  of  March  of  that  same  vear  and  .^he  had  been 


OPINION    OF    VENEZUELAN    COMMISSIONER.  2Ctï) 

formed  according  to  the  articles  of  association  piil)lishe(l  in  Paris  with 
the  ¡)roj)erty  of  the  concession  hclonging  to  Mr.  Tejera,  a  Venezuelan 
citizen,  who  had  acquired  it  ft'oni  Gen.  Guzman  Blanco,  an  interest 
on  40  per  cent  of  the  profits  having  been  adjudged  to  Mr.  Tejera, 
according  to  articles  6  and  9  of  said  articles  of  association.  Could 
it  bo  likely  that  Mr.  Tejera,  a  Venezuelan  engineer  and  ex-minister 
of  public  works,  during  one  of  the  terms  of  power  of  Gen.  Guzman 
Blanco,  from  whom  he  had  obtained  the  said  concession,  would  not 
be  well  aware  of  all  the  details  referring  to  the  boundary  (juestion 
with  Colombia  which  had  been  submitted  since  1881  by  Gen.  (Juzmán 
Blanco  to  the  arhitrio  juris  of  the  King  of  Spain? 

The  author  of  the  report  addressed  to  the  minister  of  foreign  affairs 
of  Venezuela  on  the  12th  of  November,  1894,  asserts,  on  page  25 — 

that  the  Goveinincnt  of  Dr.  Anduoza  Palacio  bhindered  in  like  manner  to  liis  predecessors, 
that  nothing  had  heen  communicated  to  the  companij  with  the  intention  of  hee  ping  from  her  all 
hfiowledge  of  the  claim  of  Colombia,  and  that  it  was  evident  that  the  Venezuelan  Government 
knew  they  were  wrong  on  this  point  toward  the  company  and  toward  Colombia. 

But  it  was  necessary  to  give  some  reply  to  Colombia,  whose  protests 
and  claims  were  daily  growing  more  pressing,  and  a  means  was  devised 
for  withdrawing  from  the  embarrassing  position  caused  by  the  con- 
tract of  1885. 

These  assertions  were  repeated  later  on  in  December,  1895,  in  the 
memorial  presented  in  Paris  by  the  liquidators  of  the  company  to  the 
minister  of  foreign  affairs  of  France  and  were  complemented  with  the 
following  statements  : 

Equity  and  ju.stice,  as  well  as  the  honor  of  Venezuela,  impose  on  the  government  of  Caracas 
the  obligation  to  pay  an  indemnity  to  those  parties  who  in  good  faith  have  invested  their 
capital  in  the  Compagnie  Générale  de  l'Oréncque  and  wliohave  been  deceived  from  beginning 
to  end. 

The  grave  nature  of  these  charges  preferred  against  the  Govern- 
ment of  Venezuela,  in  order  to  base  on  them  the  right  to  a  pecuniary 
indemnity  in  favor  of  certain  parties  pretending  to  have  been  the 
victims  of  deceit  from  beginning  to  end,  imposes  on  the  Venezuelan 
commissioner  the  task  of  throwing  ñdl  light  on  the  truth  of  this  matter 
as  to  what  refers  to  the  claim  of  Colombia,  which  the  company  alleges 
was  kept  in  concealment  by  the  governments  preceding  that  of  Dr. 
Andueza  Palacio. 

It  is  altogether  inaccurate  that  the  governments  preceding  that 
of  Dr.  Andueza  Palacio  had  communicated  nothing  to  the  Orinoco 
Comi)any  witli  the  purpose  of  Jceeping  from  her  knowledge  the  claim 
of  Colombia. 

Shortly  after  the  formation  in  Paris  of  the  syndicate  which  was 
to  be  the  basis  for  the  constitution  of  a  limited  company  in  favor 
of  which  the  concession  of  Mr.  Tejera  was  to  be  transferred,  a  report  of 
fifteen  pages  w^as  published  in  the  city  of  Paris  on  the  concessions  of  the 


206  COMPANY    GENERAL    OF    THE    OlilNUCO    CASE. 

Compagnie  Générale  de  VOrénoque  under  formation,  and  annexed  to  it 
was  an  abstract  of  the  articles  of  association  of  said  company,  together 
with  a  map  com¿jrising  the  navigable  waterways  within  the  terntury 
granted.  Tliis  report  on  the  territory  granted  was  draAvn,  as  stated, 
b)'  ^fr.  Delort  in  his  reply  to  the  minister  of  fomento  of  Venezuela, 
under  date  of  25th  of  September,  1888,  soleh"  for  the  use  of  the  share- 
holders of  the  company  which  they  had  the  intention  of  forming,  and 
the  geographical  chart  was  annexed  to  it  with  the  purpose  that  said 
shareholders  should  know  where  the  territorj'  granted  to  the  com- 
pany was  located. 

In  a  dispatch  dated  m  Bogota  on  the  28th  of  October,  1887,  the 
minister  of  Colombia  called  the  attention  of  the  minister  of  foreign 
affairs  of  Venezuela — 

to  a  report  published  in  Paris  by  a  French  company  on  the  subject  of  certain  concessions 
which  were  said  to  have  l)een  granted  I)y  the  Government  of  Venezuela  on  the  territories  of 
the  upper  Orinoco  and  Amazonas  belonging  to  the  Kepublic  of  Venezuela  and  to  a  chart 
annexed  to  that  report,  in  which  the  western  boundaries  of  said  territories  were  fixed  in  such 
a  manner  as  to  comprise  within  them  the  large  zone  which  was  sub  litis  between  Venezuela 
and  Colombia,  the  real  ownership  of  which  was  yet  to  be  decided  by  the  sentence  of  the 
Spanish  Government  according  to  the  terms  of  the  treaty  of  arbitration  juris  of  the  14th  of 
December,  1881. 

This  dispatch  ends  as  follows: 

It  is  clear  that  neither  of  the  two  Governments  can  grant  any  valid  concession  on  these 
lands,  and  it  is  likewise  evident  that  the  error  of  the  Compagnie  Générale  de  l'Orénoque  is 
due  to  their  having  made  reference  to  geographical  or  statistical  data  previous  to  the  treat}' 
of  1881  aforesaid,  by  virtue  of  which  that  zone  is  not  only  made  debatable,  but  is  to  be  defined 
by  a  special  arbitration  in  exclusive  manner. 

The  importance  of  these  observations  from  the  minister  of  Colombia 
could  not  escape  our  then  minister  of  foreign  affairs.  Dr.  Diego  Bau- 
tista Urbaneja,  who  had  been  counsel  to  the  company  from  the  very 
beginning,  as  evidenced  from  the  payments  made  to  him  by  the  mint 
of  Caracas  on  the  28th  of  February,  1888,  28th  of  April,  and  30th  of 
May,  and  at  the  end  of  each  successive  month  for  professional  services, 
(account  of  the  Compau}^  "  La  Monnaie  "  with  the  Compagnie  Générale 
de  l'Orénoque,  voucher  3),  and  consequently  a  dispatch,  dated  the 
25th  of  November,  1887,  was  addressed  to  the  minister  of  fomento 
requesting  the  necessary  information  and  report  aforesaid  for  replying 
to  the  minister  of  Colombia.  The  minister  of  fomento  replied  to  the 
minister  of  foreign  affairs  that  the  aforesaid  re])ort  had  never  been 
sent  to  his  dei)artmenl.  (Secretary's  record  of  the  ministry  of  fonuMito 
referring  to  the  contract  Guzmán-Tejera,  transmitted  to  the  higii  fed- 
eral court  to  be  annexe»!  to  the  i-ecord  of  (he  suit  against  the  Com- 
pagnie (iénérale  de  l'Orénoiiue.) 

Mr.  Delort,  who  was  director  in  Venezuela  of  the  works  started  by 
the  syndicate  and  the  only  i'ej)resentiitive  of  the  (■oiiij)imy  with  whom 
the  Government  of  A'enezuela  had  had  any  dealing  up  to  the  present, 


OPINION  OF  venezup:lan  commissioner.  267 

was  in  Paris  at  the  time  these  events  were  taking  phice.  AVhen  he 
returned  to  Caracas  in  Deceml)er,  18S7  (memorial  of  the  3(1  of  Decem- 
ber, 1895,  p.  24),  where  he  remained  a  few  days,  he  proceeded  to  (  'indad 
Bohvar,  there  to  attend  to  the  work  of  or<?anization. 

Since  February,  1888,  Doctor  Urbaneja  was  rcceivini^  from  the 
"Société  de  la  Monnaie  (the  mint)  the  pavanent  of  fees  for  professional 
services  rendered  to  the  ('ompa<i;nie  Générale  de  rOrenoijue  durin<í  the 
administration  of  General  López,  and  it  is  therefore  not  likely  that 
from  that  period  of  transition  to  the  coming  into  power  of  Dr.  Rojas 
Paúl,  which  took  place  in  July  of  same  year,  Mr.  Delort  would  be  igno- 
rant of  the  claim  of  Colombia,  his  own  counsel  being  the  identical 
person  who  had  received  the  dispatch  on  the  subject  from  the  foreign 
ofhce  of  Colombia.  As  soon  as  Dr.  Rojas  Paúl  had  been  installed  in 
power  his  minister  of  foreign  aflairs  received  on  the  9th  of  August,  1888, 
a  confidential  memorandum  from  the  minister  of  Colombia  in  Caracas, 
in  which  he  was  reminded  of  the  dispatch  of  the  28th  of  October, 
1887,  for  repl^dng  to  which  Doctor  Urbaneja,  when  minister  of  foreign 
affairs  in  November,  1887,  had  solicited  from  the  minister  of  fomento 
the  map  and  report  referred  to  in  said  dispatch,  wliich  map  and  rej)ort 
the  said  minister  of  fomento  had  been  unable  to  remit  because  the}" 
did  not  exist  in  his  department.  For  replying  to  the  confidential 
memorandum  of  the  9th  of  August,  1888,  the  minister  of  foreign  affairs 
addressed  another  dispatch,  under  date  of  the  15th  of  September,  1888, 
to  the  minister  of  fomento,  requesting  once  more  the  remittance  of  the 
said  report  and  map  in  case  these  had  already  reached  his  department, 
and,  if  not,  requesting  that  he  would  ask  the  representative  of  the 
company  for  said  documents  and  a  report  on  this  subject.  (Dispatch 
previously  inserted) .  This  was  transmitted  by  the  minister  of  fomento 
to  Mr.  Delort  under  date  of  the  18th  of  September,  1888,  to  which  he 
replied  in  the  terms  of  his  communication  of  the  20th  of  the  same 
month,  which  has  already  been  reproduced  in  extenso.  This  exchange 
of  dispatches  was  taking  place  at  the  beginning  of  the  administration 
of  Dr.  Rojas  Paúl,  one  year  and  a  half  before  Dr.  Andueza  Palacio 
came  into  power  in  March,  1890,  and  in  spite  of  this  the  representative 
of  the  Compagnie  Générale  de  rOrénocpie  and  the  li(iuidators  of  the 
same  have  not  hesitated  to  assure  to  a  high  oillcial  of  the  French 
Republic,  its  minister  of  foreign  affairs,  in  the  memorial  before  mon- 
tioned — 

that  the  Government  of  Dr.  Andueza  Pahicio  blundered  in  like  inaiuier  as  his  predeeessors, 
that  nothing  had  been  connnunicated  to  the  Compagnie  Générale»  de  rOrénoque,  not  wish- 
ing to  bring  to  her  knowledge  the  claim  of  Colombia. 

A  claim  which  is  based  on  this  sort  of  argument  is  judged  and  s(mi- 
tenced  by  itself. 

Apart  from  the  inconsistency  and  lack  of  truth  of  the  assumption 
of  the  company  that  the  Venezuelan  Governments  kept  in  conceal- 


26«  COMPANY    GENERAL    OF    THE    ORINOCO    CASE. 

ment  the  claim  of  Colombia  with  reference  to  publications  made  by 
the  s}Tidicate  of  the  company  of  the  Orinoco  what  took  place  between 
the  Venezuelan  and  the  Colombian  foreign  oilices  did  not  in  any  waj- 
alter  the  essence  of  the  contract  between  the  Government  of  Venezuela 
and  'Sir.  Miguel  Tejera,  which  was  simply  for  the  exploitation  of  the 
natural  products  of  the  territories  of  Upper  Orinoco  and  Amazonas,  and 
which  neither  meant  to  convey  the  alienation  of  any  lands  nor  fixed 
any  boundaries. 

Tliis  concession  comprised  an  extension  of  territory  several  times 
larger  than  the  zone  of  land  coterminous,  on  the  western  part  of  the 
Republic,  with  Colombia,  submitted  to  the  award  of  the  King  of  Spain. 
The  extension  of  those  territories  comprised  very  nearlj^  25,000,000 
hectares,  thickly  Avooded  from  the  rapids  of  Maipures  to  the  Brazilian 
boundars'  toward  the  south  and  to  the  Republic  of  Colombia  toward 
the  east.  The  justice  and  the  accuracy'  of  this  appreciation  are  acknowl- 
edged by  the  very  Compagnie  Générale  de  l'Orénoque  in  the  reply  of 
her  representative  to  the  minister  of  fomento,  in  which  they  say: 

The  compan}"  lays  no  claim  whatever  with  reference  to  the  boundary'  question  with  Colom- 
bia, as  she  is  well  aware  that  she  has  to  conform  to  the  limits  which  may  ultimately  be  fixed 
to  the  Republic  of  Venezuela. 

The  good  faith  with  which  Venezuela  held  in  her  possession,  as 
belonging  to  her,  a  certain  zone  of  lands  which  was  afterwards  awarded 
by  the  arbitrator  to  Colombia  precludes  all  responsibility  from  the 
Government  in  the  concession  in  c^uestion,  wdiich  was  never  intended 
to  convey  any  definite  alienation,  but  simply  the  exploitation  of  nat- 
ural products  in  those  localities  where  Venezuelan  settlements  existed 
under  the  jurisdiction  of  Venezuelan  authorities. 

This  declaration,  which  is  altogether  in  accordance  with  the  princi- 
ples of  international  law,  is  concreteh^  embodied  in  the  award  of  the 
arbitrator  on  the  boundary  question  with  Colombia  in  the  following 
words  : 

Wherea.s,  according  to  the  agreement  signed  by  the  parties  the  award  is  to  fix  the  limits  or 
boundaries,  which  in  the  year  1810  existed  between  the  then  general  captaincj'of  Venezuela, 
to-day  the  United  States  of  Venezuela,  and  the  viceroyalty  of  Santa  Fé,  to-day  the  Repulilic 
of  Colombia; 

Whereas  the  law  functions  assigned  to  the  arbitrator  by  the  treaty  of  Caraca.s  of  tlie  14tli 
of  .S<'ptember,  1881,  wore  enlarged  by  the  declaration  of  Paris  of  the  l.^th  of  February,  1SS(», 
.so  that  the  boundary  line  should  be  fixed  in  the  lu-st  manner,  as  nearly  as  possible,  according 
to  the  exi.sting  documents,  whenever  these  documents  tlu-ow  not  suflicient  light  on  a  given 
point; 

Con-sidering  that,  for  the  better  understanding,  section  6  (Orinoco  and  Rio  Negro  line)  can 
be  divided  into  two  parts,  viz,  from  the  Meta  to  Maipures,  and  from  Maipures  to  tlie  bowlder 
called  Cocuy; 

Considering  that  the  starting  point  and  the  legal  base  for  determining  the  l)oundury  line 
in  part  second  of  the  tith  section  is  the  real  c<?dula  (royal  decree)  of  tiie  .")th  of  May,  170S, 
on  the  real  meaning  of  which  there  is  a  disparity  of  opinion  l>elwcen  the  two  liigh  con- 
tracting parties; 


OPINION    OF    VENEZUELAN    COMMISSIONER.  269 

Considering  that  the  terms  of  the  aforesaid  real  cédula  are  not  as  clear  and  precise  as  nec- 
essary in  this  class  of  documents  so  as  to  base  exclusively  on  same  a  decision  juris; 

Considering  therefore  that  the  arbitrator  is  confronted  with  the  case  foreseen  by  the  decla- 
ration of  Paris  before  mentioned; 

Considering  that  the  United  States  of  Venezuela  ¡Hissess  in  good  faith  territories  to  the 
west  of  the  Orinoco,  the  Casiquiare  and  the  Rio  Negro,  which  rivers  form  the  boundaries 
assigned  on  that  side  to  the  province  of  Guayana,  by  the  said  real  cédula  of  1768; 

Considering  (hat  in  said  territories  there  exist  very  important  V eneziielnn  settlements  which 
have  been  fostered  in  the  bona  fide  belief  that  they  were  located  xiñthin  the  dominions  of  the 
united  States  of  Venezuela,  and  lastly, 

Considering  that  the  rivers  Atabapo  and  Rio  Negro  form  a  natural,  clear,  and  precise  fron- 
tier, with  the  only  interruption  of  a  few  kilometers  from  Yavita  to  Pimichin  thus  to  keep 
clear  of  the  respective  boundaries  of  these  two  villages; 

I  have  to  come  to  declare  that  the  boundary  line  debated  between  (he  Republic  of  Colom- 
bia and  the  United  States  of  Venezuela  is  now  deiincd  in  (he  following  manner:     *     *     * 

Section  6,  Part  I.  From  the  mouth  of  the  river  Meta  in  the  Orinoco  down  the  stream  of 
this  last  to  the  rapids  of  Maipures,  but  always  having  consideration  to  the  fact  that  the  village 
of  Atures  from  the  time  of  its  foundation  has  made  use  of  a  road  ivhich  is  on  the  left  bank  of 
the  Orinoco  for  the  purpose  of  turning  the  rapids  from  the  said  village  of  Atures  to  the  harbor 
or  port  situated  to  the  south  of  Maipures,  opposite  to  the  hill  called  Macuriana,  toward  the 
north  of  the  mouth  of  river  Vichada;  the  aforesaid  incumbrance  or  right  of  way  is  here  expressly 
assigned  in  favor  of  Venezuela,  the  same  incumbrance  to  cease  twenty-five  years  after  the  publi- 
cation of  this  award  or  as  soon  as  a  road  be  made  in  Venezuelan  territory  which  may  render 
unnecessary  the  traffic  along  the  Colombian  road,  the  two  interested  parties  having  the  right 
to  regulate  by  common  consent  the  use  of  this  incumbrance.  (From  the  Official  Gazette  of 
Madrid,  7th  of  March,  1891.) 

As  may  be  seen  from  the  preceding  award,  the  arbitrator  expressly 
acknowledged  that  Venezuela  had  possessed  in  good  faith  a  portion  of 
the  territory  adjudged  to  CVilombia,  and  in  consequence  he  established 
in  favor  of  Venezuela  the  use  of  way  between  Atures  and  Maipures 
along  the  left  bank  of  the  Orinoco  for  a  period  of  twenty-five  years,  to 
be  counted  from  the  publication  of  the  award.  This  decision  would 
have  given  full  security  of  the  Compagnie  Générale  de  TOrénoque,  had 
it  at  the  time  carried  out  her  obligation  to  construct  a  railway  line 
which  was  to  divert  the  hindrance  of  the  rapids  of  Atures  and  Maipures 
and  to  facilitate  the  steam  navigation  of  the  Orinoco, 

Having  demonstrated  that  the  charges  preferred  against  the  Vene- 
zuelan Governments  and  their  proceedings  toward  the  Compagnie 
Générale  de  l'Orénoque  with  reference  to  the  Colombian  boundary 
question  are  devoid  of  all  bases,  and  having  also  demonstrated  that 
the  judgment  passed  by  the  high  Federal  court  in  the  suit  entered  for 
rescission  of  the  contracts  granted  to  said  company  for  the  exploitation 
of  the  natural  products  of  the  territories  of  Upper  Orinoco  and  Amazo- 
nas and  for  the  exploitation  of  the  tonca  beans  (sarrapia)  on  the  terri- 
tories conterminous  with  Brazil  and  British  Guiana,  was  a  sentence 
pronounced  b^^  that  tribunal  after  having  complied  with  all  the  legal 
prescriptions  of  the  code  of  procedure  then  in  force,  and  in  every  way 
in  accordance  with  the  fundamental  laws  then  in  force  in  Venezuela, 
the  Venezuelan  commissioner  considers  that  said  sentence  is  valid  and 


270  COMPANY    GENERAL    OF   THE    ORINOCO    CASE. 

affirmed,  and  that  it  has  been  acknowledired  and  accepted  b}'  the  Com- 
pagnie Générale  do  l'Orénoque,  since  this  company  did  not  in  due  time. 
according  to  the  law,  make  use  of  her  right  to  appeal  in  order  to  invali- 
date same. 

After  due  examination  of  the  fundamental  part  of  this  sentence,  and 
after  analyzing  all  the  evidence  produced  by  the  contending  parties,  it 
is  evident  that  the  verdict  of  the  high  Federal  court,  in  administering 
justice  on  behalf  of  the  Republic  and  b}'  authority  of  the  law,  was 
entirely  adjusted  to  the  prescriptions  of  the  civil  code  on  rescission  of 
contracts,  the  Compagnie  Générale  de  l'Orénocpie  not  having  complied 
with  any  of  the  obligations  under  Nos.  1,  2,  3,  4,  5,  6,  7,  and  9  of  article 
2  of  the  contract  of  the  17th  of  December,  1885,  nor  with  any  of  the 
stipulations  3d,  4th,  and  5th  of  the  contract  of  the  1st  of  April,  1887, 
and  as  a  consecjuence  of  which  rescission  the  tribunal  condemned  the 
Compagnie  Générale  de  l'Orénoque  to  pay  to  the  Venezuelan  Govern- 
ment the  sum  of  40,048.62  francs  for  damages,  besides  the  costs  of  the 
suit. 

Two  days  after  the  financial  representative  of  the  Government 
(fiscal  nacional  de  hacienda)  entered  before  the  high  Federal  court  the 
suit  against  the  Compagnie  Générale  de  rOrénocpie  a  general  meeting 
of  shareholders  of  said  company  was  taking  place  in  Paris,  on  the  30th 
of  iSIay,  1890,  in  which  a  resolution  was  passed  for  the  purpose  of  con- 
verting the  Compagnie  Générale  de  rOrénocpie  into  an  English  com- 
pany, under  the  name  of  "Orinoco  Exploration  and  Trading  Com- 
pany," w^hich  meeting  likewise  resolved  to  dissolve  and  irind  up  the 
company  and  appointed  liquidators.  In  the  memorial  presented  by  the 
liquidators  of  the  company  on  the  5th  of  December,  1895,  reference  is 
made  to  the  aforesaid  dissolution,  after  the  following  statements: 

The  board  of  directors  had  manj^  debtors  and  they  hesitated  therefore  to  collect  the  har- 
vest of  1890,  but  yielding  to  the  representations  of  their  agents  they  furnished  the  necessary 
funds  in  agreement  with  a  Liverpool  firm  who  sent  out  their  special  agent,  Mr.  Staedelli. 

The  position  of  the  company  in  I'aris  was  very  ¡xiinful,  as  its  credit  had  been  totallij 
exhausted.  All  efforts  made  in  France  proved  to  be  of  no  avail,  while  in  England  confidence 
was  not  lost  and  it  was  possible  to  go  on  there  with  the  business.  Tiie  board  of  directoi-s 
therefore  willingly  considered  a  proposition  from  P'ngland  for  the  constitution  of  a  comj)any 
in  London,  to  which  all  the  assets,  contracts,  material,  works,  etc.,  of  the  Compagnie  Gémi- 
ralc  de  l'Orénoque  would  be  transferred. 

No  mention  is  made  in  this  memorial  of  the  liabilities  of  the  com- 
pany, although  it  may  be  inferred  from  their  own  statements  that  they 
must  have  been  considerable,  as  the  credit  of  the  company  was  exhausted 
in  Paris  and  all  e  forts  in  France  seemed  of  no  avail. 

In  the  accounts  annexed  to  the  petition  presented  by  the  li(|uidators 
of  the  company  on  the  10th  of  July,  1902,  to  the  minister  of  foreign 
affairs  of  France,  which  fixes  their  claim  agaiiist  the  A'enezuelaii  Gov- 
ernment in  the  sum  of  7,010,098.02  francs,  will  he  I'ound  the  following 


OPINION    OF   VENEZUELAN    COMMISSIONER.  27l 

items  referring  to  the  liabilities  of  the  company  on  the  30th  of  May, 
1890: 

Francs. 

1.  To  the  shareholders 1 ,  ,500, 0(X).  00 

2.  To  tlie  Société  de  la  Monnaie 722,  851 .  56 

3.  La  Banque  de  Consignations 236,  .35(5.  00 

4.  Mr.  Alfred  Chauvelot 191,  176.  (K) 

5.  Mr.  Eugene  Ferminac 63,  (XK).  fX) 

6.  Mr.  Louis  Roux 13, 059.  55 

7.  Mr.  Theodor  Delort 14,  641.  26 

Total 2, 741, 084.  37 

In  this  amount  interest  on  the  different  credit  balances  is  not 
included.  The  company  had,  therefore,  on  the  30th  of  May,  1890, 
debits  amounting  in  total  to  almost  as  much  as  the  capital  of  the  com- 
pany, equal  to  1,500,000  francs. 

Out  of  this  capital,  600,000  francs  had  been  allotted  to  Mr.  Chauve- 
lot, in  1,200  shares  (fully  paid)  of  500  francs  each,  which  were 
deducted  from  the  3.000  shares  which  formed  the  capital  of  the 
company. 

Mr.  Bricard,  who  had  been  appointed  auditor  in  the  first  general 
meeting  of  the  9th  of  March,  1888,  presented  a  report  dated  in  Paris 
the  10th  of  jNIarch,  1888,  in  wliich  he  emits  his  opinion  in  reference  to 
the  valuation  given  to  the  contributions  brought  to  the  company  by 
Messrs.  Miguel  Tejera,  Chauvelot,  and  Th.  Delort. 

The  contribution  of  Messrs.  Tejera  and  Delort  consisted  in  the 
concesisons  granted  by  the  Government  of  Venezuela  for  the  exploita- 
tion of  the  natural  productions  of  the  Territories  of  the  Upper  Ori- 
noco and  Amazonas,  and  for  the  exclusive  purchase  and  sale  of  all  the 
tonca  beans  (sarrapia)  of  the  territory  between  the  Orinoco,  Brazil, 
and  British  Guiana.  In  consideration  of  these  contributions  Messrs. 
Tejera  and  Delort  had  an  interest  of  40  per  cent  and  20  per  cent,  res- 
pectively, on  the  dividends  to  be  distributed. 

The  contribution  of  Mr.  Alfred  Chauvelot  consisted  in  the  following  : 

First.  The  plant  belonging  to  him,  and  principally  the  steam 
launches  and  boats  of  other  kind,  the  rolling  stock,  etc.,  in  short,  all 
the  goods  bought  by  him  for  the  intended  exploitation. 

Second.  All  the  works  already  completed,  such  as  houses,  stores, 
offices,  shops,  etc.,  erected  on  the  different  agencies,  and  the  actual 
organization  of  the  exploitation,  which  included  the  contracts  and 
agreements  with  the  various  agents  and  employees. 

Tliird.  The  assets  and  liabilities  of  the  company,  including  all  goods 
on  deposit  or  in  transit,  as  well  as  the  ingress  and  egress  necessary  for 
the  purchase  or  sale  of  goods,  or  effects,  etc..  for  the  upkeep  of  the 
personnel. 

Fourth.  The  agreement  signed  with  several  commercial  agents  for 
the  purchase  and  sale  of  goods  in  Europe  and  America. 


272  COMPANY    GENERAL    OF    THE    ORINOCO    CASE. 

The  opinion  of  the  auditor  with  reference  to  the  contribution  of  Mr. 
Chauvelot,  in  consideration  of  which  he  was  allotted  1,200  shares  of 
500  francs  each,  is  expressed  in  the  following  words: 

A  sum  of  3i)0,000  francs  witliout  any  interest  and  witliout  any  sniaranty  was  placed  at 
the  disposal  of  the  explorers,  and  in  consideration  of  this  loan  and  of  the  penalties  and  priva- 
tions suffered  by  Mr.  Chauvelot  and  his  friends  (who  had  derived  from  this  enterprise  no  bene- 
fit whatever,  either  direct  or  indirect,  and  who  reliiuiuished  in  favor  of  the  company  any 
benefits  accruing  from  the  sale  of  products  exported  up  to  date)  1,200  shares  were 
allotted  to  him.  I  must  add  that  the  expenses  incurred  up  to  date  far  exceed  the  said 
sum  of  300,000  francs,  but  said  expenses  are  already  incurred  and  they  are  repre- 
sented by  the  plant  and  the  work  performed.  These  expenses  had  to  be  made  and  they 
will  be  beneficial  to  the  compau}',  who  would  have  been  obliged  to  incur  the  same  after  she 
had  been  constituted.  It  is  therefore  only  right  that  the  company  liquidate  these  supple- 
mentary expenses  at  her  own  risk  and  peril  and  take  them  over. 

The  amount  of  these  expenses,  which  were  represented  by  plant  anil 
work  performed,  is  said  far  to  exceed  the  sum  of  300,000  francs  loaned 
by  Mr.  Chauvelot,  but  the  exact  figure  is  not  given.  From  the  exami- 
nation of  the  accounts  presented  by  the  Société  de  la  Monnaie  it 
appears  that  on  the  10th  of  March,  1888,  when  the  auditor  presented 
his  report,  the  syndicate  of  the  Haut  Orénoque  was  raising  the  sum  of 
491,846  francs,  not  counting  interest  from  the  1st  of  January  of  same 
year  ;  that  on  that  date  the  accoimt  was  commenced  with  a  debit  balance 
of  499,523.09  francs;  that  theaccountof  theBan(|ue  des  Consignations 
commenced  on  the  1st  of  January,  1890,  with  a  debit  balance  of 
285,900.70  francs  and  was  increased  with  interest  to  the  31st  of  March, 
1890,  amounting  to  3,849.59  francs,  and  with  31.75  francs,  Mr. 
Brumeaux's  fees  for  a  summons,  and  with  13  francs  for  dispatches  to 
London  and  to  New  York. 

The  foregoing  shows  that  when  the  Compagnie  Générale  de  l' Oréno- 
que was  constituted  with  a  capital  of  1,500,000  francs,  a  sum  of 
600,000  francs  in  fully  paid  up  shares  was  allotted  to  Mr.  Chauvelot  in 
consideration  of  his  loan  of  300,000  francs,  which  was  represented  in 
plant,  steam  launches,  and  })reliminary  work  for  establishing  the 
navigation  of  the  Orinoco,  whicli  really  constituted  the  working  capital 
of  the  company;  that  this  working  capital  had  really  cost  a  sum  in 
excess  of  the  300,000  francs  loaned  by  Mr.  Chauvelot  and  that  the 
company  undertook  to  liquidate  the  same  and  to  take  it  over  at  her 
own  risk  and  peril;  that  according  to  the  abstract  of  account  oí  the 
Société  de  lu  Monnaie,  the  syndicate  was  owing  to  that  society  the  sum 
of  491,486  francs,  which  was  partially  paid  oil'  during  the  course  of 
that  year  with  bills  of  exchange  and  cash,  and  that  said  account  was 
thus  reduced  on  the  31st  of  December,  1888,  to  the  sum  of  284,()73.29 
francs,  inclusive  of  interest  amounting  to  28,427.85  francs.  The  sum 
of  900,000  francs  paid  in  by  the  shareholders,  besides  the  600,000  francs 
allotted  to  Mr.  Chauvelot,  wore  absorbed  by  the  liiiuiilution  of  the 


OPINION    OF   VENEZUELAN    COMMISSIONER.  273 

debts  of  the  syndicate  and  by  the  requirements  of  the  trading  of  the 
society  in  buying  and  selHng  goods,  exporting  products,  employees,  and 
general  expenses;  and  no  evidence  exists  to  show  that  any  part  of  that 
sum  of  money  had  been  invested  as  contracted  by  the  company  in  the 
construction  of  two  railway  lines,  in  the  sending  out  of  a  scientific  com- 
mission for  the  study  of  the  natural  products  and  minerals  existing  in 
the  territories,  nor  in  the  introduction  of  immigrants,  or  the  building  of 
chapels  and  schools  in  every  village  that  the  company  was  boimd  to 
found,  nor  in  the  construction  of  barracks,  nor  the  introduction  of 
Catholic  missionaries,  nor  in  the  hospitals  and  drug  shops  for  the 
attendance  of  natives  and  innnigrants,  nor  in  colonizing  the  tonca- 
bean  teri'itories,  nor  in  establishing  navigation  in  the  principal  affluents 
of  the  Orinoco. 

This  sum  of  900,000  francs,  paid  into  the  treasury  of  the  company, 
as  well  as  the  sum  of  1,241,000  francs,  which  she  was  owing  to  several 
parties  two  years  after  starting  her  operations,  after  having  exhausted 
her  credit  and  being  unable  to  proceed,  appear  to  have  been  all  spent 
without  any  other  apparent  result  than  the  exportation  during  the 
same  lapse  of  time  of  73,992.20  kilograms  of  rubber  and  44,569.70 
kilograms  of  tonca  beans,  according  to  the  official  figures  mentioned 
in  page  68  of  the  memorial  of  the  liquidators. 

The  explanation  of  the  result  of  the  commercial  operations  of  the 
compan}"  is  ñirnished  by  the  very  figures  taken  from  her  books  and 
reproduced  in  the  memorial  so  often  quoted.  (See  p.  66.)  This 
demonstration  or  abstract  is  headed  thus  : 

General  account  of  expenses  of  the  Compagnie  Générale  de  l'Orénoque,  from  the  original 
syndicate,  September,  1886,  to  the  14th  of  October  1891  (on  which  day  judgment  was 
passed  by  the  high  Federal  court),  after  deducting  the  moneys  received  for  sale  of  products 
by  the  companj\ 

Items  referring  to  expenses: 

Expenses  of  first  establishment,  viz; 

Francs. 

Expenses  of  syndicate 290,  995.  88 

Cindad  Bolivar: 

F,xpcnscsoî  administrât  ion,  agencies,  employees,  navigation  expends ,  trav- 
eling expenses,  etc 487, 263. 09 

Furniture  and  naval  stores,  shop  ami  transport  stores,  sawmill,  utensils, 

etc 425, 040.  66 

Atures  and  Maipures  : 

WorJc  on  boats  ami  transportation  of  same  over  the  rapids,  mounting,  re- 
mounting, repairing  and  maintaining  same,  railroad  for  the  carrying 
over  of  the  boats.     Surveys  of  both  banks  of  the  river  for  the  constnic- 

tion  of  a  final  line,  roads,  bridges,  rafts,  buildings,  etc 629, 080.  87 

Punta  Brava: 

Expenses  of  agency  and  of  installation.  Imrljor,  road,  and  other  work 117,  7()S.  01 

San  Fernando  and  San  Carlos: 

Expenses  of  agency  and  installation,  buildings,  watch  posts,  etc 360,  521 .  80 

Cattle  ranch  on  the  Vichada. .   62,  708.  08 

S.  Doc.  533,  59-1 18 


274  COMPANY    GENERAL    OF    THE    ORINOCO    CASE. 

Paris: 

General  expenses  of  administration,  board  of  directors,  employees,  traveling  Francs. 

expenses,  etc 118,  628.  19 

Stamps  and  registration 6,  821 .  80 

Total 2,498,767.88 

Considering  the  amounts  of  these  items  and  all  that  is  revealed  by 
them,  and  taking  into  account  the  capital  with  which  the  company  was 
founded  and  the  colossal  magnitude  of  the  enterprise  it  entereil  u])on 
miaware  of  the  difficulties  of  same,  as  has  been  repeatedly  acknowledged 
by  her  principal  directors,  it  must  be  admitted  that  what  happened 
was  only  natural  and  inevitable,  viz:  That  the  company  exliausted 
its  credit;  that  it  was  unable  to  proceed  with  its  operations  or  to 
comply  Avith  its  engagements  and  to  pay  its  debts;  that  the  general 
meeting  of  shareholders  of  the  .30th  of  May,  1890,  resolved  to  dissolve 
and  wind  up  the  company  before  they  had  any  knowledge  of  the  action 
suit  entered  by  the  representative  of  the  Government  of  Venezuela, 
and,  lastly,  its  attempts,  twice  baffled,  to  convert  itself,  fu-st,  into  an 
English  company  with  the  name  of  "The  Orinoco  Exploration  and 
Trading  Company,"  and  later  on  into  a  Belgian  limited  company 
.under  the  name  of  "Compagnie  Internationale  des  Caoutchoucs," 
both  attempts  having  been  made  with  the  object  of  obtaining  an 
increase  of  cash  capital  to  pay  off  debts  and  proceed  uñth  the  business. 

The  declarations  of  several  parties  who  had  held  important  posts  in 
the  employ  of  the  company  can  be  made  good  as  further  evidence  of 
the  real  situation  of  the  company  in  ^lay,  1890,  which,  bemg  in  want  of 
funds  and  having  totally  exhausted  its  credit  in  Paris,  was  unable  to 
comply  with  its  engagement  toward  the  Government  of  ^'enezuela  and 
to  continue  the  exploitation  of  the  concessions  transferred  to  it  by 
Messrs.  Tejera  and  Delort,  by  reason  of  which  the  general  meeting  of 
shareholders  resolved  on  the  dissolution  and  winding  up  of  same. 
These  declarations  are:  First,  the  declaration  made  l)ofore  the  judge 
of  first  instance  of  San  Fernando  de  Apure  by  ]\Ir.  Enricjue  Ligeron, 
submanager  of  the  company  in  the  Upper  Orinoco,  which  declaration 
is  a  part  of  the  evidence  procured  and  presented  by  the  representative 
of  the  company  before  the  high  Federal  court  in  the  action  entered  by 
the  fiscal  de  la  hacienda  pública  (financial  representative  of  the  Gov- 
ernment); and,  second,  the  report  j^resented  by  the  li(|uidators  of  the 
company  to  the  meeting  of  shareholders  held  in  Paris  on  the  27th  of 
December,  1890,  as  well  as  the  minutes  of  said  general  meeting. 

Mr.  Enriijue  Ligeron's  declaration  of  the  13th  of  November,  1890, 
before  the  said  judge  is  as  follows  : 

I  wa.s  subnianagcr  of  tlio  company  in  San  Fornaudo  do  Atal)apo  moro  (lian  four  years, 
honcc  when  1  wont  to  that  placo  tiio  .steam  launches  whicii  (iio  comi)any  had  taken  there  for 
navigatin»;  tlie  river  above  the  rapids  liad  i)oen  carried  above  these  rapids.  Tficsc  sttain 
launches  had  been  transported  on  rails  prorisionalhj  laid,  and  when  I  arrived  there  uo  riiHirai/ 
Une  existí  il  and  the  rails  had  been  scattered  in  different  parts.     In  tlic  [¡resent  condition  of 


OPINION  ov  venezup:lan  commissioner.  275 

tlu;  river  above  the  rapids  no  steamboat  can  navigate  on  those  waters,  as  the  obstacles  offered 
by  the  rapids  are  insurmountable.  The  more  convenient  way  of  covering  that  space  would 
be  the  construction  of  railway  lines  over  grouml,  which  offers  no  great  difficulties,  tlie  most 
difficult  part  of  which  being  the  construction  of  bridges  on  the  affluents  of  the  Orinoco,  which 
nm  across  these  lands.  It  is  evident  to  nie  tliat  the  company  made  all  efl'orts  in  order  to 
.comply  with  the  engagements  of  its  concessions,  but  in  my  opinion,  it  could  not  do  more 
than  what  it  performed,  owing  to  the  in,mfflciency  of  its  capital  for  carrying  out  the  different 
enterprises  of  its  contmct. 

The  abstract  of  the  iniiuites  of  the  o;eneral  mooting  of  shareholders 
of  the  29th  of  December,  1890,  contains  the  following:  i 

The  meeting  having  been  regularly  constituted,  the  liquidators  read  the  following  report  : 
"  In  our  meeting  of  the  23d  of  June  last  you  were  accjuainted  with  the  agreement  signed  with 
the  Gold  Trust  and  Investment  Company  for  converting  the  Compagnie  Générale  de  l'Oré- 
noque  into  an  English  company  called  'Orinoco  Exploration  and  Trading  Company.'  This 
agreement  having  been  approved  by  the  general  meeting,  the  dissolution  and  winding  up  of 
the  company  was  resolved  and  I  had  the  honor  to  be  appointed  liquidator." 

The  agreement  with  the  Gold  Trust  having  been  definitely  sanctioned  by  the  shareholders, 
the  new  company  was  formed  and  registered  in  England;  but  political  differences  having  in 
the  meantime  ari.sen  between  England  and  Venezuela,  this  last  power  has  absolutely  refused 
to  acknowledge  the  new  company  and  to  transfer  to  same  the  rights  and  concessions  of  ('he 
French  company.  It  was  but  very  late  that  I  was  made  acquainted  with  the  causes  which 
were  opposed  to  the  formation  of  the  English  company,  and  this  delay  was  the  cause  of  my 
losing  very  valuable  time;  but  the  moment  I  knew  of  these  causes  I  took  steps  conducive  to 
a  result  xohich  might  save  our  company.  I  have  appealed  for  assistance  to  the  former  direc- 
tors of  the  company  who  ar^  now  negotiating  with  the  Government  of  Venezuela  and  have 
looked  toward  another  solution  of  the  problem,  which  is  the  only  means  of  insuring  ihefutwe 
of  the  company,  viz,  the  reconstruction  of  the  present  company  with  an  increase  of  fresh  capital 
in  cash.  These  gentlemen  will  now  submit  their  views  to  you  and  will  luring  to  your  knowl- 
edge the  result  of  their  negotiations. 

The  chairman  then  said  that  owing  to  the  facts  which  had  just  been  mentioned  by  the 
lic[uidator  the  board  of  directors  had  sent  to  Caracas  Mr.  Berthier,  who  had  been  a  former 
agent  of  the  company,  with  the  following  mission  :'io  obtain  from  the  Government  the  revision, 
of  the  old  concessions,  which  evidently  contained  clauses  which  were  embarrassing  to  the  Govem- 
iiient  as  well  as  to  the  company.  Mr.  Berthier  was,  besides,  to  make  sure  that  the  Govern- 
ment would  make  no  difficulties /or  the  transfer  to  a  new  company  (provided  this  be  not  an 
English  compan\^)  of  all  the  rights  and  concessions  accruing  from  the  new  contract.  The 
double  purpose  of  Mr.  Berthier's  mission  has  been  obtained,  the  tenns  of  the  new  contrairt 
proposed  have  been  accepted,  and  one  of  its  clauses  will  allow  the  transfer  to  a  new  companv. 
The  new  company  will  bo  French-Belgian,  formed  ivith  the  assistance  of  a  powerful  Belgian 
group. 

The  chairman  then  read  the  draft  of  the  Articles  of  Association  of  the  Frencli-Belgian 
Company  in  formation. 

The  Compagnie  Générale  de  l'Orénoque  having  ceased  to  exist  in 
Ma}',  1890,  by  virtue  of  the  dissolution  voted  b}-^  the  sharoholdors,  the 
administrators  had  no  longer  power  to  transact  any  business,  and  the 
authority  of  the  liquidators  was  reduced  to  the  collection  of  moneys 
owing  to  the  company,  to  wipe  off  former  debts  and  liabilities,  and  to 
conclude  whatever  operations  were  pendmg  at  the  time  of  the  dissolu- 
tion. The  liquidators  had  also  to  appear  in  court  in  whatever  actions 
existed  against  the  company,  as  the  limited  company  called  "Com- 
pagnie (lénéralo  do  TUrenoipio"  had  ceased  to  exist  by  virtue  of  hor 


27G  COMPANY    GENERAL    OF    THE    ORINOCO    CASE. 

dissolution,  and  there  had  likewise  ceased  to  exist,  from  the  moment 
that  the  liquidators  had  been  appointed,  all  the  powers  and  authority 
of  the  board  of  directors,  as  well  as  all  the  powers  that  might  have 
been  conferred  by  said  directors. 

From  the  minute  examination  of  all  the  papers  and  documents 
referring  to  this  matter,  made  by  the  Venezuelan  commissioner  it  is 
eviilent  that  at  no  time  whatever  was  the  knowledge  of  the  dissolution 
and  liquidation  of  the  Compagnie  Générale  de  l'Orénoque  conveyed  to 
the  high  Federal  court,  and  that  the  li(iuidators  never  took  any  steps 
for  the  purpose  of  being  represented  in  the  action,  neither  at  the  time 
when  the  suit  entered  by  the  representative  of  the  Government  of 
Venezuela  was  to  be  answered  (on  the  22(1  July,  1890),  nor  on  the  7th 
of  August,  1890,  when  Mr.  Fiat  entered  his  petition  for  the  collection 
of  evidence,  nor  in  any  other  circumstance  whatever  during  the  whole 
course  of  the  process.  It  is  likewise  evident  from  said  examination 
that  the  dissolution  of  the  company  was  never  officially  communicatetl 
to  the  Government  of  Venezuela,  and  it  is  natural  to  infer  that  the 
cause  of  this  omission  was  to  keep  this  fact  ft-om  the  knowledge  of  the 
Venezuelan  authorities,  a  fact  which  in  itself  was  sufficient  for  the 
complete  success  of  the  action  entered  by  the  representative  of  Vene- 
zuela in  the  liigh  court  for  the  rescission  of  the  contracts  upon  which 
the  company  was  formed,  since  the  dissolution 'and  liquidation  of  the 
company  frustrated  the  object  to  be  obtained  by  the  working  of  the 
concessions  granted  and  made  it  materially  impossible  for  the  con- 
cessionaries to  comply  with  their  obligations,  which  was  the  legal 
basis  of  the  suit. 

It  is  equally  evident  from  the  avowals  of  the  liquidators,  in  their 
memorial  to  the  minister  of  foreign  affairs  of  France,  and  Mr.  Alfred 
de  Berthier's  correspondence  annexed  to  same,  that  Mr.  Fiat,  who  liad 
been  representing  the  company  before  the  court  up  to  the  11th  of 
October,  1890,  had  sent  Ms  resignation  to  Paris,  and  that  Mr.  Bernabé 
Planas  was  then  appointed  as  attorney,  but  this  gentleman  having 
declined  the  appointment,  it  was  decided,  on  the  advise  of  ^^r.  Deh)rt, 
to  send  out  a  special  agent.  Mi\  Berthier  was  appointed  for  this  mis- 
sion, as  he  was  acquainted  with  all  the  details  of  the  matter.  Mr. 
Berthier,  who  was  at  the  time  in  Martiniijue,  was  notified  to]>n)('eed 
to  Caracas,  where  he  arrived  on  the  25th  of  October,  1S9().  (Page  47 
of  the  memorial.)  Mr.  Berthier  remained  in  Caracas  from  the  end  of 
October,  1890,  to  the  month  of  July,  1901,  and  the  action  taken  by 
him  tended  s(dely  to  the  obtaining  oj  an  extra  judicial  und< rstanding 
vdth  the  fiscal  de  hacienda  (the  representative  of  the  (iovernment)  //; 
the  suit  pending  before  the  high  Federal  court — 

in  order  t")  put  a  stop  to  the  process  and  the  relinquishment  on  tht  part  of  the  Ooirinment  /<« 
ilemand  on  indemnity,  and  tlio  company,  on  tlio  otiicr  Iitind,  to  renounce  to  its  concession, 
in  |)lac('  of  wliicli  anotlicr  would  Ix'  i;ran(cd  wliicli  would  l)c  inmu'iliatfiy  IransForretl  to  llie 
new  ci>iiij)un3'. 


OPINION    OF    VENEZUELAN    COMMISSIONER.  277 

Mr.  Berthier,  in  a  letter  dated  the  16th  of  December,  transmits  to 
Count  de  Ker  Daniel,  the  liquidator  of  the  company,  the  following: 

I  am  not  yet  sure  of  this  result,  which  has  not  so  far  been  agreed  to,  but  it  is  useless  to 
deceive  ourselves  on  it ,  as  after  all  it  does  not  amount  to  much .  What  we  would  really  gain  ix 
the  cessation  of  the  action  entered  af/ain^t  vs.  All  else  is  a  ciiimera  (leurre).  I  do  not, 
however,  believe  that  I  can  obtain  anythiufi  l)etter,  ami  I  consider  it  ¡iicl'ij  if  we  obtain  this. 

According  to  the  scheme  proposed  to  the  Govornnicnt  of  Venezuela 
for  a  new  contract — 

the  company  was  to  relinquish  her  former  concessions  and  the  Government  was  to  desist  from 
the  action  entered  before  the  high  court,  each  party  to  pay  their  own  costs,  and  the  Govern- 
ment was  to  grant  to  the  company  for  a  period  of  twenty-five  years  the  exclusive  rigiit  for 
steam  navigation  on  the  waterways  of  the  Federal  Territories  Upper  Orinoco  and  Amazonas, 
and  on  the  rivers  Caura  and  Ciichivero,  during  which  period  the  Government  would  not 
grant  a  similar  concession  to  any  other  party  or  company. 

The  steamers  of  the  company  were  to  navigate  imder  the  Venezue- 
lan flag.     (Annexed  document  No.  92.) 

It  is  to  be  observed  that  this  scheme  commences  in  this  way: 

The  Compagnie  Générale  de  l'Orénoque,  represented  by  her  legal  attorney,  as  per  an- 
nexed power,  which  will  be  certified. 

No  mention  whatever  is  made  that  the  company  was  in  liquidation, 
and  all  along  this  document  she  is  simply  called  the  ''Compagnie 
Générale  de  l'Orénoque." 

Article  10  of  this  scheme  is  worded  thus: 

This  contract  can  be  transferred  to  any  other  party  or  company  with  the  previous  con.sent 
of  the  Federal  Government,  without  which  formality  the  transfer  can  not  be  effected;  liow- 
ever,  as  an  exception  this  contract  can  be  transferred  in  part  or  in  whole  to  the  Belgian 
company  called  "Compagnie  Internationale  des  Caoutchoucs  et  Produits  Naturels  au  Bassin 
de  l'Orénoque." 

According  to  article  3  of  said  scheme  the  company  had  the  right  to 
construct  within  the  territories  mentioned  the  railway  and  telegraph 
lines  which  it  might  think  convenient. 

Mr.  Berthier  went  on  with  his  extra  judicial  negotiations  until  May, 
1891.  On  the  17th  of  the  same  month  this  gentleman  (as  confirmed 
by  his  letter  of  28th  of  May  to  the  liquidators)  transmitted  to  the  said 
liquidators  the  following  cablegram: 

Contract  accepted  on  best  terras,  navigation  included;  no  special  commission.  I  await 
instructions  to  proceed.  Don't  you  wait  longer,  as  time  is  very  limited.  If  you  can  not 
remit  one  hundred  thousand,  send  by  cable  whatever  you  can  with  authority  to  draw  on 
you  for  the  balance. 

He  again  telegraphed  on  the  2 2d  of  May  as  follows: 

On  receipt  of  my  letter  of  the  7th  of  May  (which  has  not  been  presented),  reply  by  cable. 
The  tenth  word  of  my  telegram  should  have  been  "pullcinetto"  (£600,000).  Give  your 
approval  to  contract,  which  comprises  the  free  navigation.  I  have  sent  you  a  copy.  I  will 
not  weary  of  pressing  you,  as  there  is  no  time  to  be  lost. 


278  COMPANY    OENEKAL    OF    TÍIK    ORINOCO    CASE. 

Again,  a  third  cablegram  of  the  2.5th  of  May  reads  thus: 

As  3'OU  have  not  telegraphed  to  me,  the  negotiation  has  collapsed.  It  is  useless  to  pro- 
ceed, there  l)eing  no  prohahiiity  of  doing  any  business  for  some  time.  I  am  unable  to  do 
anything  for  the  present.  I  will  leave  on  the  filh  June.  I  ran  not  remain  here  any  lonL'er. 
Congress  dissolves  shortly. 

Mr.  Berthier's  letter  continues  in  this  way: 

I  have  received  your  last  telegram  one  day  after  I  had  transmitted  to  you  mine  of  the  2.')th. 
This  is  equivalent  to  telling  you  that  said  telegram  an-ived  too  late.  I  therefi)re  confirm  the 
contents  of  said  telegram,  but  I  shall,  however,  await  for  tlie  arrival  of  Doctor  Moris.'^e.  a'^ 
per  your  advice. 

I  considered,  by  the  contents  of  the  letters  jou  have  written  to  me,  that  you  were  in  a 
position  to  reply  inunediately  on  receipt  of  my  first  telegram.  The  deciphering  you  made 
of  same  was  nearly  correct,  and  it  should  have  given  you  to  understand  the  danger  incurred 
by  waiting.  In  truth  I  was  careful  to  tell  you  that  the  Government  maintained  the  nullity 
of  the  former  contract  to  be  replaced  by  a  new  one.  You  ought  to  have  known,  in  con.se- 
fjuencc,  that  this  entirely  new  decision  required  a  certain  time  and  that  by  means  of  the  rail- 
road we  evaded  the  trouble  of  having  to  wait  for  Congress.  I  am  .still  going  to  make  a  last 
attempt  in  order  to  prevent  that  the  7}ew  conipajuj  be  annulled  in  con.^equence  of  the  nonfulf  li- 
ment of  the  contracts  6;/  the  old  company.  There  will  be  an  extraordinary  .session  of  Congress 
which  lasts  for  some  weeks.  I  will  try  to  obtain  a  solution  of  the  process,  whichever  it  may 
be.  *  *  *  If  I  fiiil  in  in}'  last  attempt,  there  will  be  no  other  way  i)ut  to  lodge  a  claim 
against  the  Government.  It  follows,  of  course,  that  a  counteraction  (cross  demand)  may  be 
entered.  Two  facts  has'e  now  taken  place  on  the  Orinoco  which  will  give  us  considerable 
power  later  on.  The  first  is  that  the  steamer  Meta  was  put  out  of  service  without  any  cause 
by  order  of  the  governor  of  the  territory,  an  action  which  constitutes  an  outrage  against 
private  property.  The  second  is  an  armed  aggression  against  the  steamer  A7  Lihertail,  which 
was  nearly  captured.  All  this  may  serve  as  a  basis /or  demandin{i  a  lareje  indemnitii,  but 
when  would  such  a  cause  come  to  an  issue?  Before  I  leave  I  will  settle  this  matter  no  as  to 
tjire  to  my  successor  the  startiny  pointfor  a  claim.  It  would  likewise  be  the  official  verification 
of  tho.se  deeds  which  may  be  considered  as  worthy  of  a  savage  country.  Resuming  what 
precedes  I  am  going  to  try  to  obtain  a  solution  which  will  countenance  the  existence  (la  raiso7i 
d'être)  of  the  new  company.  In  case  I  fail,  I  shall  make  preparations  for  obtaining  the  required 
matter  (elements)  for  the  process  which  we  must  necessarily  enter  into.  I  will  a.ssociate 
with  Maiz,  by  private  agreement,  for  obtaining  the  concession  on  the  rapids  and  sell  out  the 
same.  In  this  way  we  shall  heep  our  hands  on  the  business.  I  will  conclude  by  saying  that  I 
rely  on  the  sincerity  of  the  promises  made  to  me  and  that  tlie  political  situation  has  been  the 
only  cause  of  our  failure.  It  is  probable  that  a  satisfactory  result  may  l)e  obtained,  pro- 
vided you  can  wait  and  spend  some  money  at  the  proper  moment  :  but  as  I  can  see  no  issue 
for  the  present,  and  I  must  necessarily  return  to  France,  I  re(|uest  you  to  relievo  me  from 
this  post. 

In  pi'ge  4i)  of  the  memorial  addressed  to  the  minister  oï  foreign 
affairs  of  Fmnce  the  liquidators  express  themselves  as  folK)\vs: 

When  Mr.  Berthier  saw  that  he  could  obtain  nothing,  he  looked  to  a  solution  of  the  mat  ter 
by  means  of  contract  for  a  railroad  on  the  right  bank;  l)ut  we  did  not  understand  bis  <al)lc- 
gram,  and  this  solution,  on  the  other  hand,  was  not  acceptable.  In  short,  Mr.  Berliner  had 
proved  verj'  expensive  and  had  achieved  no  sort  of  success.  But  what  was  more  grave  than 
all  this  is  that,  on  his  advice,  the  Belgian  company  called  "Compagnie  Internationale  des 
Caoutchoucset  Produits  Naturels  du  Bassin  de  rOri'^noijue  "  had  been  constituted  at  Brussels 
in  May  in  order  to  transfer  to  the  same  the  new  coiitracl  (article  10  of  the  final  scheme). 
What  was  now  to  become  of  that  company  Í 


OPINION    OF    VENEZUELAN   COMMItíSIONEK.  279 

The  immediate  consequence  of  Mr.  Berthier's  return  to  Paris  was 
that  the  Hquidators  left  the  company  without  any  attorney  to  repre- 
resent  it  in  the  suit  before  the  higli  Federal  court,  there  being  no 
document  in  existence  to  prove  that  the  liquidators  took  the  necessary 
steps  for  their  representation  at  Caracas  after  Mr.  Berthier  had  left. 

From  the  examination  of  all  the  documents  presented  it  appears 
likewise  that  the  company  had  no  official  re])rcsontative  in  the  ter- 
ritories of  upper  Orinoco  and  Amazonas  and  that  it  limited  its  action 
there  to  entrusting  to  four  employees  (two  in  San  Fernando  and  two 
in  San  Carlos)  the  collection  of  moneys  owing  to  it  and  to  keep  an 
employee  at  Atures  and  another  one  at  Maipures. 

More  or  less  than  three  years  after  the  company  had  been  put  into 
liquidation,  and  owing  to  the  abandonment  or  desertion  in  which  the 
company  had  left  all  its  goods  and  chattels,which  consisted  of  personal 
property,  some  goods,  effects,  and  a  few  buildings  made  of  earth,  tim- 
ber, and  iron  roofing,  and  which  were  scattered  in  different  places  on 
the  banks  of  the  Orinoco,  the  governor  of  the  territory  Upper  Orinoco 
issued  a  decree  laying  an  embargo  on  all  these  goods  and  chattels 
(under  date  of  8th  of  March,  1893),  giving  notice  to  the  national 
executive  of  this  decree  and  remitting  the  inventory  of  said  goods  to 
the  representative  of  the  company  at  Caracas  for  his  knowledge  and 
purposes. 

The  allegation  set  forth  that  the  governor  of  the  Upper  Orinoco 
had  no  authority  to  carry  into  execution  the  sentence  of  the  high 
Federal  court  without  an  order  to  the  effect  from  said  court  does  not 
imply  that  this  governor  had  no  authority  to  decree  the  inventory  of 
the  goods  and  chattels  of  the  Compagnie  Générale  de  l'Orénoque  in 
liquidation,  w^hich  were  entirely  abandoned  and  were  suffering  con- 
siderable damage,  owing  to  the  special  condition  of  same  and  to  the 
wide  expanse  of  territorj'  over  which  they  were  scattered. 

From  the  evidence  of  document  No.  2  of  the  records  in  the  archives 
of  the  high  Federal  court  and  from  the  memorial  addressed  on  the  3d 
of  November,  1895,  by  the  liquidators  of  the  company  to  the  minister 
of  foreign  affairs  of  France,  it  is  proved  that  the  acts  of  the  governor 
of  the  aforesaid  territory  were  limited  to  the  following:  To  the  appoint- 
ment of  the  persons  that  were  to  make  the  inventory  at  ^hiipures  and 
San  Fernando  de  Atabapo,  for  which  purpose  the  chief  civil  official 
was  commissioned,  as  well  as  for  acting  as  receiver,  there  being  no 
legal  representative  of  the  company  to  deal  with;  to  issue  instruc- 
tions to  the  same  official,  under  date  of  8th  of  May  of  same  year,  for 
the  preservation  of  the  real  and  personal  property,  for  the  caretaking 
of  the  machinery,  hulks,  tools,  and  other  effects,  and  for  the  tending 
and  care  of  the  cattle  and  stock;  to  issue  a  decree  appointing  citizens 
Julián  Franklin,  Julián  Rivero,  Sergio  Lira,  and  Pablo  Sanchez  to 


280  COMPANY    GENERAL    OF    THE    ORINOCO    CASE. 

take  charjre  of  all  the  stock  and  cattle  that  were  under  the  care  of 
Braulio  Valiente. 

.  It  is  therein  stated  that  the  firn\  of  Messrs.  Dalton  &  Co.  had  pre- 
sented a  petition  or  memorial  requesting  the  payment  of  expenses 
and  salaries  which  they  had  incurred  on  behalf  of  the  Orinoco  corn- 
pan}'.     Messrs.  Dalton  &  Co.  sa}^  in  said  memorial: 

During  our  commercial  relations  with  the  company  of  the  upper  Orinoco  and  Amazons  we 
have,  during  more  than  one  j'ear,  paid  all  expenses  of  the  caretaking  and  pres«irvation  of  the 
property  of  the  company,  including  expenses  caused  h}'  Mr.  Marcelo  Chiarelli.  Without  our 
intervention  and  without  the  interest  which  we  took  in  the  matter  the  property  aforesaid 
ivould  have  been  completely  ruined,  as  it  had  been  notoriously  left  in  abandonment,  owing  to  the 
difficulties  which  the  company  experienced  latterly. 

Messrs.  Dalton  concluded  by  requesting  the  payment  of  4.000 
francs,  as  per  account,  which  they  annex. 

Pages  8  and  10  of  the  aforesaid  document  No.  2  contains  the  inven- 
tory of  the  property  of  the  company  at  Perico,  consisting  of  1  house 
roofed  with  iron,  several  tools  and  pieces  of  furniture,  6  mules.  1 
horse  (all  in  bad  condition),  and  1  donkey;  page  11  contains  the  receipt 
of  Braulio  Valiente  for  the  cattle  of  the  company  at  Santa  Catalina, 
which  consisted  of  23  cows,  26  calves,  1  horse,  1  nmle,  and  1  donkey. 
Page  the  12th  contains  a  declaration  from  the  same  Valiente,  in  wliich 
he  states  the  following:  That  besides  these  animals  he  had  delivered 
the  following  during  the  revolution:  To  ^Santiago  Hidalgo  20  head, 
to  Mr.  Horacio  Luzard  3  oxen,  and  to  Mr.  Pedro  Quiñones  2  head, 
making  a  total  of  25  head  in  all;  that  he  has  in  his  possession  3  head 
belonging  to  Mr.  Julián  Rivero,  3  cows  and  2  calves  belonging  to  Mr. 
Sergio  Lira,  12  head  belonging  to  Mr.  Juan  Figarella  and  1  more  head 
belonging  to  Mr.  Boulissière;  that  7  bullocks  have  died  and  1  has 
gone  astray;  that  2  bullocks  were  slaughtered  by  Gen.  Venancio 
Pulgar,  jr.,  and  2  by  General  Anselmo,  governor  of  the  Upper  Orinoco; 
that  Mr.  Juan  Figarella  sold  5  cows  at  $25  each,  5  bullocks  at  S30 
each,  1  lean  bullock  for  $25,  1  calf  for  $8,  and  1  bullock  to  Mr.  Boulis- 
sière for  $41;  that  the  cattle  belonging  to  Julián  Rivero  and  Sergio 
Lira  were  delivered  to  them  by  order  of  Mr.  Chiarelli,  liquidator  of  the 
company. 

Page  13  contains  another  declaration  of  the  same  Valiente  to  the 
effect  that  the  house  of  Messrs.  Dalton  &  Co.  was  owing  him  salaries 
as  caretaker  of  the  cattle  of  the  company  to  the  amount  of  S333.75. 
$30  for  a  hut  and  corral  built  by  him,  and  $31  for  payment  to  laborers, 
making  in  all  a  total  of  $396.75. 

Page  16  contains  the  declaration  of  the  French  citizen  CI.  Aubey, 
as  follows  :     • 

Question.  From  whom  did  you  receive  tlie  properly  of  the  company  in  Sun  Fernando  <lc 
Atabapo  in  order  to  become  their  agent  in  tliut  ])iac(><  Reply.  The  agent  of  tiie  company 
in  that  place  was  the  French  citizen  Mr.  Eduardo  Marie,  but  he  had  been  ol)liged  to  leave  on 
importuiit  business  and  lie  had  commissioned  to  put  me  in  charge  the   Belgian  .sulijcit, 


OPINION    OF    VENEZUELAN    COMMISSIONER.  281 

Eugenio  Halvcich,  from  whom  I  reocivcd  all  the  proporty  under  inventory,  .Mr.  Ramóu 
Orosco  being  present  and  signing  the  same  as  witness 

Question.  To  whom  does  the  house  called  "  Casa  Amarilla"  belong?  Kcply.  The  house 
belongs  to  me  conditionally.  I  will  explain  this  to  you.  The  liquidator  of  the  company, 
called  Mr.  Roux,  who  resided  in  Paris,  wrote  to  me  in  August,  1891,  to  .say  "that  I  was  to 
consider  all  the  bonos  (promissory  notes)  which  T  held  from  the  company  as  hard  ca,sh."  I 
then  took  the  house  in  guarantee  with  the  intention  of  turning  over  the  .same  to  the  company 
in  case  she  might  need  it,  and  provided  I  was  paid  the  sum  of  C),W2  francs,  which  the  com- 
pany was  owing  me. 

Question.  What  goods  are  there  now  in  the  Casa  Amarilla í  Reply.  There  are  some 
pieces  of  furniture  and  some  goods. 

Pages  18,  19,  and  20  contain  the  declaration  of  Juan  Figarella,  a 
French  citizen  in  the  employ  of  Mr.  Chiarelli,  who  had  been  intrusted 
with  the  liquidation  of  the  property  of  the  company  by  Mr.  Edmundo 
Knots.  This  declaration  is  in  every  way  identical  to  that  of  Braulio 
Valiente  with  reference  to  the  cattle. 

Pages  21,  22,  23,  and  24  contain  the  inventory  of  the  goods  in  the 
Casa  Amarilla,  which  was  an  erection  in  pretty  good  condition,  built 
of  earth  with  a  thatch  roof.  These  goods  consisted  of  woven  stuffs, 
haberdashery,  and  ironmongery,  and  the  inventory  of  same  was  made 
in  the  presence  of  G.  Aubey,  Pedro  Nicco,  R.  Orosco,  and  Nieves 
AiTabache. 

Page  26  contains  the  declaration  of  Horacio  Luzard,  similar  to  that 
of  Braulio  Valiente,  in  what  refers  to  the  number  of  cattle. 

Page  29  contains  a  receipt  from  Luis  A.  Ortega  in  favor  of  Gen. 
Juan  Anselmo,  governor  of  the  Territory,  for  the  amount  of  $131.43 
on  account  of  work  as  caretaker  of  the  property  of  the  company. 

Page  30  contains  a  receipt  from  Braulio  Valiente  for  $108.63  in 
favor  of  same  governor  for  salaries  as  caretaker  of  the  cattle  of  the 
company. 

Page  31  contains  a  petition  addressed  to  the  judge  by  the  aforesaid 
governor,  requesting  the  payment  of  expenses  incurred  in  taking  the 
inventory  of  the  property  of  the  company,  as  per  vouchers  of  Luis  A. 
Ortega  and  Braulio  Valiente  for  the  sum  of  959.24  bolivars  and 
requesting  that  orders  be  issued  for  the  sale  of  part  of  the  property  to 
cover  said  expenses.  Then  follows  the  record  of  the  sale  of  the  goods 
of  the  Casa  Amarilla,  as  per  inventory  of  12th  of  April  last,  efl'ected  in 
public  auction  on  the  22d  of  May,  at  which  sale  bids  were  made  by  the 
Vinciquina  for  360  bolivars,  by  Nieves  Arrabache  for  400  bolivars,  by 
Ramón  Orosco  for.800  bolivars,  and  by  Juan  Anselmo  for  900  bolivars; 
and  no  higher  bid  being  obtainable  the  goods  were  allotted  to  Gen. 
Juan  Anselmo. 

It  is,  therefore,  inaccurate,  as  asserted  in  the  aforesaid  memorial, 
that  the  governor,  Juan  Anselmo,  had  declared,  on  his  owti  authority, 
that  he  had  a  right  to  an  indemnity  in  consideration  of  his  labors,  nor 
that  all  the  property  of  the  Compagnie  Générale  de  VOrénoque  was  sold 
and  adjudged  to  Gov.  Juan  Anselmo  for  the  sum  of  900  bolivars. 


282  COMPANY    UENEKAL    OF    'J'HK    ORINOCO    CASE. 

In  appreciating  the  true  and  real  situation  in  which  the  property  ol 
the  Compagnie  Générale  de  l'Orénoque  had  been  left  after  and  by 
virtue  of  the  dissolution  of  the  company,  and  in  consequence  of  the 
al)andon  in  which  the  saitl  property  appears  to  have  remained  fc^r 
years  exposed  to  the  inclemenc}^  of  the  weather  in  localities  the  natural 
conditions  of  which  cause  very  serious  damage  to  buildings,  goods, 
utensils,  tools,  steamboats,  and  others,  it  is  the  conviction  of  the 
Venezuelan  arbitrator  that  all  this  property  did  not  represent  at  the 
end  of  the  period  elapsed  a  value  sufficient  to  cover  the  sum  of  40,048.02 
francs,  which  the  company  had  been  condennied  to  pay  hir  damages  by 
the  sentenoe  of  the  high  Federal  court,  and  the  further  sum  which 
the  company  was  likewise  to  pay  to  the  Government  for  costs  of  the 
suit,  which  have  not  as  yet  been  liipiidated. 

By  virtue  of  this  and  of  the  reasons  set  forth  in  this  opinion  the 
Venezuelan  arbitrator  considers  that  the  claim  lodged  by  the  liquida- 
tors of  the  company  against  the  Government  of  A'enezuela  for  the 
amount  of  7,616,098.62  francs  is  totally  devoid  of  basis  and  disallows 
it  absolutely. 

NoRTHFiELD,  February  ,9.  190Ó. 

Note  by  the  Veneziei.ax  Commissioner. 

The  foregoing  is  a  faithful  translation  of  nij'  opinion  rendered  at  Caracas  in  session  of 
the  Venezuelan-French  Commission  of  ^la}"  5,  1903,  as  it  appears  from  the  report  called 
"  Comisión  Mixta  Venezolana-Francesa,  protocolo  de  19  de  Febrero  de  1902.  Dictámeneíi 
del  Arbitro  Venezolano." 


OPINION  OF  THE  FRENCH  COMMISSIONER. 

The  Company  General  of  the  Orinoco  claims  on  the  date  of  July  10. 
1902,  a  sum  of  7,616,090.62  bolivars,  which  is  made  up  as  follows: 

One  million  five  hundred  thousand  bolivars  for  its  capital. 
1,701,680.17  bolivars  for  the  debts  contracted  in  view  of  the  service  of 
the  concession,  2,414,410.45  bolivars  for  interest  at  6  per  cent  on  these 
two  sums  for  twelve  years,  and  finally  2,000,000  bolivars  for  the 
eventual  profits  which  it  has  lost.  After  having  examined  the  dossier 
and  studied  the  memoir  presented  by  Doctor  Paúl,  I  have  judged  that 
the  Venezuelan  Government  ought  to  pay  to  the  company  an  indem- 
nity of  7,000,000  bolivars.  In  failing  in  the  obligations  which  it  had 
assumed,  in  deceiving  the  company  by  its  dissimulation  which  changed 
the  substance  of  its  agreements,  and  in  interfering  with  the  manage- 
ment of  the  concession  by  its  vexations  and  abu.ses  of  power  the 
Venezuelan  State  has  brought  about  the  ruin  of  the  compiiny.  Its 
responsibility  is  then  involved,  in  my  o|iinion,to  the  anunmt  of  sums 
disbursed  by  the  comi)!iny.  These  .sums  including  the  cnpitnl,  the 
debts,  and  obligations  contracted  for  the  service,  and  the  interest, 
amount  to  a  total  of  5,616,098.62  bolivars. 


OPINION    OF    FRENCH    COMMISSION P:R.  283 

To  arrive  at  this  ainoiint  the  company  has  reckoned  the  interest  at 
the  rate  of  6  per  cent.  Wliile  this  rate  may  be  moderate  considering 
the  nature  of  the  enterprise  and  tlie  vahie  of  money  in  ^'^enezuela,  a 
rate  of  3  per  cent  must  be  allowed  in  the  calculation  of  interest  to  be 
granted  to  the  capital.  Tn  fact  my  colleague  and  myself  have  agreed 
that  interest  given  by  the  commission  should  be  calculated  at  a  rate  of 
3  per  cent,  this  rate  being  fixed  by  the  Venezuelan  code  as  a  legal 
rate  tlie  contract  being  silent,  and  being  accepted  for  the  already 
existing  French  diplomatic  debt. 

There  is  then  reason  to  diminish  the  sum  claimed  by  the  difference 
o])tained  in  reckoning  interest  at  3  per  cent  instead  of  6  per  cent,  or 
5-1:0,000  bolivars.  This  decrease,  on  the  other  hand,  ought  only  to 
relate  to  the  interest  on  the  capital  ;  in  fact  the  company  being  obliged 
to  pay  an  interest  of  6  per  cent  to  its  lenders  and  holders  of  obligations 
it  would  be  unjust  to  make  a  reduction  on  the  sum  claimed  imder  this 
head  and  which  enters  entirely  into  the  disbursements  of  the  company. 

I  have  not  thought  at  all  that  I  ought  to  accord  to  the  company  the 
indemnity  of  2,000,000  bolivars  which  it  claims  for  the  eventual 
profits  which  it  has  lost.  It  has  not  been  in  business  long  enough  to 
arrive  at  a  time  of  profit,  and  no  one  can  know  if  it  would  ever  have 
reached  a  point  greater  than  the  normal  interest  on  the  capital 
invested,  the  interest  of  which  I  take  into  account  in  the  reckoning  of 
the  indemnity.  That  remains  very  doubtful  if  we  consider  the  burden- 
some obligations  which  the  com[)any  allowed  to  be  imposed  upon  it  in 
the  contract.  It  would  not  be  equitable  that  it  owed  to  the  situation 
of  claimant  the  advantage  of  taking  from  Venezuela  benefits  u])on 
wliich  it  could  not  have  counted  truly,  considering  the  conditions  of  its 
management,  if  the  latter  had  been  developed  without  interference.  It 
is,  then,  a  sum  of  5,078,098.62  bolivars  that  in  ec(uity  the  Venezuelan 
Government  ought  to  pay  to  the  company  for  losses  sufl"ere(l.  But  T 
have  had  to  take  account  on  the  one  hand  of  the  use  of  the  interest 
since  Jvdy  1,  1902,  the  day  on  which  the  calculation  prepared  by  the 
c(mipany  stopped;  and,  on  the  other  hand,  of  the  depreciation  of  the 
bonds  of  the  diplomatic  debt.  Twenty-seven  months  have  already 
passed  since  the  first  of  July,  1902.  and  this  lapse  of  time  increases  the 
amount  claimed  b}'  the  company  more  than  800,000  i)olivars,  which 
will  continue  to  accrue  until  the  day  of  the  final  award.  Up  to  to-day 
this  will  be  a  sum  of  at  least  6,000.000  bolivars,  which  ought  to  be  |)aid 
to  the  company  for  reimbursement  of  its  expenses. 

Finally,  the  indemnity,  according  to  the  terms  of  the  protocol,  hav- 
ing to  be  paid  in  bonds  of  the  diplomatic  debt,  and  not  in  gold,  in 
virtue  of  the  concession  consented  to  by  the  French  Government  in 
favor  of  the  Venezuelan  Government,  to  allow  it  to  pay  its  debts  wàth 
greater  facility,  and  the  depreciation  of  these  bonds  being  at  the  present 
moment  about  60  per  cent,  I  have  judged  it  equitable  to  increase  this 


284  COMPANY    GENERAL    <>F    THE    oKINOfO    CASE. 

indemnity  of  6,000,000  bolivars  by  1,000,000  bolivars,  which  thus 
reaches  the  sum  of  7,000,000  bolivars  in  bonds  of  diplomatic  debt. 
These  7,000,000  bolivars  represent  merely  2,800.000  bolivars  in  goUl. 
This  is  the  sum  which  the  company  ought  to  receive  and  the  Venezue- 
lan Government  pay  if  the  umpire  should  share  the  opinion  of  the 
i>cnch  arbitrator.  This  sum  represents  only  a  little  more  than  half 
of  the  disbursements  of  the  company. 

The  Venezuelan  arbitrator,  playing  the  part  of  a  lawyer  rather  than 
that  of  an  impartial  arbitrator  in  the  V)rief  submitted  to  me,  undertakes 
to  dispute  the  arguments  of  the  company,  and  to  demonstrate  that 
the  Venezuelan  Government,  far  from  having  anything  to  be  censured 
for,  was,  to  the  contrary,  in  a  position  to  bring  suit  against  the  com- 
pany for  not  having  fulfilled  its  obligations.  The  minutes  of  the 
session  of  the  commission  of  May  7,  1903,  mentions  that — 

Doctor  Paúl  expresses  to  his  colleague  the  desire  that  he  present,  as  he  himself  has  done, 
an  exposition  of  arguments  upon  which  he  bases  his  judgment  and  by  which,  at  the  same 
time,  he  would  reply  to  the  arguments  presented  by  the  Venezuelan  arbitrator.  Doctor 
Paul  would  be  able  to  take  these  into  consideration  and  to  see  if  it  would  be  possible  to  reach 
an  agreement. 

I  have  refused  to  follow  my  colleague  into  this  field,  believing  that 
in  my  capacity  of  an  arbitrator  I  am  not  called  upon  to  present  any 
arguments  in  favor  of  or  against  one  of  the  two  parties,  but  only  to 
examine  their  statements  and  decide  in  favor  of  the  one  or  the  other. 
One  of  the  lawyers  of  the  Paris  bar,  Maître  Poincaré,  has  undertaken 
to  defend  the  company  in  the  field  of  law,  answering  Doctor  Paul's 
arguments.  ^ 

The  reading  of  the  brief  prepared  by  Mr.  Poincaré  has  but  strength- 
ened me  in  the  opinion  which  I  had  formed  after  having  studied  the 
dossier  and  the  plea  of  my  colleague. 

Doctor  Paul  was  so  convinced  that  he  was  taking  the  part  of  the 
lawyer  rather  than  that  of  an  arbitrator,  that  he  made  the  statement 
to  me  at  the  session,  as  shown  by  the  minutes,  that  he  would  take  my 
arguments  into  consideration  if  I  was  willing  to  submit  them  and  "  see 
if  it  would  be  possible  to  reach  an  agreement." 

Has  not  my  colleague  confessed  by  these  words  that  an  agreement 
is  possible  and  that  consequently  the  company  has  a  right  to  an 
indemnity?  Ido  not  see,  in  fact,  how  we  would  have  been  able  to 
arrive  at  an  agreement  unless  he  recognized  the  principle  of  an  indem- 
nity, contrary  to  his  decision  to  reject  the  claim  entirely.  I  am  still 
persuaded  that  my  colleague  would  have  changed  his  absolute  opinion 
if  I  had  consented  to  diminish  in  notable  proportions  the  indenmity 
which  I  havefixed.  But  conscientiously  I  have  not  been  able  tt)  decitle 
to  do  it.  It  is  not  my  intention  to  censure  Doctor  Paul,  because  his 
patriotism  may  have  led  him  to  become  a  lawyer  representing  his 
country  instead  of  the  man  who  vvas  called  upon  to  pass  judgment.     I 


OPINION    OF    FRENCH    COMMISSIONER.  285 

am  contented  to  make  mention  of  it,  and  to  the  contrary  I  seize  this 
occasion  with  pleasure  to  render  homage  to  the  courtesy  and  the 
breadth  of  mind  ho  has  shown  in  the  course  of  the  numerous  sittings 
of  the  commission  (hiring  which  we  have  examine<l  nearly  four  hundred 
claims,  of  which  I  understand  that  the  exposé  and  the  discussion  must 
have  been  grievous  many  times  to  his  Venezuelan  sentiments. 

But  Doctor  Paúl  would  not  have  been  the  only  one  among  liis  author- 
ized compatriots  who  would  have  consented  to  recognize  the  respon- 
sibility of  his  Government  in  this  affair  and  consequently  to  admit  that 
an  indemnity  is  due  to  the  company.  In  1897  the  President  of  the 
United  States  of  Venezuela  sent  to  Paris  a  semiofficial  plenipotentiary. 
General  Pietri,  to  endeavor  to  renew  the  diplomatic  relations  inter- 
rupted between  the  two  countries  since  the  departure  in  1895  of  the 
Marquis  de  Mondar,  French  minister,  because  of  an  incident  which 
to  reopen  here  is  unnecessary.  Mr.  Pietri  opened  negotiations  with 
the  Quai  d'Orsay,  and  such  negotiations  resulted  in  the  signing  of  a 
protocol  by  virtue  whereof  normal  relations  between  France  and 
Venezuela  were  to  be  reestablished,  provided  such  diplomatic  act  was 
ratified  by  the  Congress  of  Venezuela.  Annexed  to  said  protocol 
there  was  a  convention  concluded  on  June  24,  1897,  between  the 
plenipotentiary  of  Venezuela  and  the  liquidators  of  the  Company  Gen- 
eral of  the  Orinoco,  the  text  of  said  convention  being  attached  to  the 
papers  (dossier)  in  the  claim.  It  was  stipulated  by  the  convention 
that  said  company  byway  of  a  compromise  agreed  to  relinquish  any 
further  claims  upon  payment  by  the  Venezuelan  Government  of  an 
indemnity  of  3,600,000  bolivars. 

The  Venezuelan  Congress  did  not  ratify  said  protocol,  the  conven- 
tion remaining,  therefore,  null  and  void.  However,  it  may  be  inferred 
from  such  fruitless  endeavors  to  come  to  an  agreement  that  there  has 
been  a  Venezuelan  plenipotentiary,  who  eight  years  ago  recognized  the 
right  on  the  part  of  the  Company  General  of  the  Orinoco  to  a  consid- 
erable indemnity. 

The  Venezuelan  Congress  having  met  in  secret  session  to  examine 
the  protocol  signed  by  Messrs.  Ilanotaux  and  Pietri,  I  have  been 
unable  to  learn  the  reasons  of  its  rejection  by  said  assembly.  It  is 
possible  that  the  convention  subscribed  to  by  the  company  may  have 
had  something  to  do  with  such  rejection.  But,  even  admitting  that 
the  existence  of  said  convention  had  been  the  only  cause  of  the  refusal 
of  Congress  to  ratifv  the  piotocol,  said  convention  does  not  lose  by 
that  fact  its  character  as  a  document  of  great  value,  for  all  those  who 
know  by  experience  that  the  facility  with  which  the  Venezuelan 
administration  despoil  foreigners  of  rights  acquired  by  mutual  con- 
sent is  only  equalled  by  the  difficulty  which  the  Government  and 
public  opinion  in  Venezuela  experience  in  admitting  for  injured  stran- 
gers the  legitimacy  of  equitable  compensation. 

Paris,  September  2,  1904. 


286  COMPANY    GENERAL    OF    THE    ORINOCO    CAí?E. 

ADDITIONAL  OPINION  OF  THE  VENEZUELAN  COMMISSIONER. 

I  have  read  the  brief  lately  prepared  by  the  commissioner  for  France 
explanatory  of  his  opinion  rendered  at  the  sittings  held  by  the  com- 
mission in  Caracas  on  May  5  and  7,  1003,  averrin»;  that  the  Govern- 
ment of  Venezuela  ought  to  indemnify  the  General  Company  of  the 
Orinoco  to  the  amount  of  7,000,000  bolivars  in  'A  \)vv  cent  b(»nds  of  the 
diplomatic  debt. 

The  gallant  expressions  used  by  the  French  commissioner  in  speak- 
ing of  my  position  on  the  mixed  commission  where  I  have  had  the  most 
signal  honor  of  sharing  the  arduous  task  with  so  distinguished  and 
learned  a  colleague,  I  appreciate  as  a  compensation  for  the  mortiiica- 
tions  which  M.  de  Peretti  justly  believes  my  patriotic  sentiments  have 
suffered  while  examining  the  3.32  claims  submitted  to  our  investigation 
and  decision,  representing  in  the  aggregate  the  enormous  sum  of 
80,000,000  bolivars,  a  sum  which  is  about  equivalent  to  the  capital 
actually  represented  by  the  French  colony  in  Venezuela. 

Moved  by  a  critical  spirit,  my  learned  colleague  makes  the  following 
statements: 

The  Venezuelan  commissioner,  playing  the  part  of  a  lawyer  rather  than  that  of  an  impar- 
tial arbitrator,  in  the  brief  submitted  to  me  undertakes  to  dispute  the  arguments  of  the  com- 
pany.    *     *     * 

I  have  refused  to  follow  my  colleague  into  this  field,  believing  that  in  my  capacity  of  an 
arbitrator  I  am  not  called  upon  to  present  any  argimients  in  favor  of  or  against  one  of  the  two 
parties,  but  only  to  examine  their  statements  and  to  decide  in  favor  of  the  one  or  the  other. 
*     *     * 

Doctor  Paúl  was  so  convinced  that  he  was  taking  the  part  of  the  law\-er  rather  than  I  hat  of 
an  arbitrator,  that  he  made  the  statement  to  me  at  the  session,  as  shown  by  the  minutes, 
that  he  would  take  my  arguments  into  consideration,  if  I  was  willing  to  submit  them  and 
and  see  if  it  would  be  possible  to  reach  an  agreement.     *     *     * 

It  is  not  my  intention  to  censure  Doctor  Paúl,  because  his  patriotism  may  have  led  him 
to  become  a  lawj'er  representing  his  country  instead  of  the  man  who  was  called  upon  to  i>ass 
judgment      *     *     * 

M.  de  Peretti  de  la  Rocca,  called  upon  to  pass  judgment  on  the  claims 
of  his  countrymen,  believes  himself  to  be  authorized  under  the  Paris  pro- 
tocol to  pass  judgment  upon  the  manner  in  which  I  have  performeil 
my  work  on  the  commission.  I  do  not  think  that  the  protocol  gives 
his  authority  so  wide  a  scope,  but  I  believe  that  I  am  obliged  to  stat(« 
that  his  opinions  as  to  the  method  I  have  deemed  best  to  follow  in  the 
discharge  of  my  duties  and  functions  as  an  arbitrator,  are  entirely 
foreign  to  the  impersonal  character  which  discussions  between  arbi- 
trators must  have  when  a  difference  of  opinion  divides  them  wliile 
investigating  and  deciding  upon  a  case. 

The  work  I  have  helped  to  perforin  as  the  conuni.ssioner  (arbitrator) 
for  Venezuela  on  the  two  French-Wnezuelan  Connni.^sions,  in  connec- 
tion with  the  severe  judge  of  my  country,  is  well  demonstrated  by  the 
facts  that  out  of  332  French  claims  submitted  to  our  decision,  amount- 


ADDITIONAL    OPINION    OF    VENEZUELAN    COMMISSIONER.       287 

ing  to  the  sum  of  77,477,409.47  bolivars,  306  were  definitively  settled  or 
decided  by  mutual  agreement,  reducing  the  sum  claimed  from 
34,127,226.10  bolivars  to  3,950,731.14  bolivars,  or  about  ono-iiinth 
part  of  the  sum  claimed  ;  10  claims  were  submitted,  because  of  disagree- 
ment, to  the  final  decision  of  the  umpire,  Mr.  Filtz,  who  awarded  the 
sum  of  153,369.38  bolivars,  and  the  other  S  claims,  representing  the 
sum  of  42,988,047.50  bolivars,  are  subject  to  the  investigation  of  the 
honorable  umpire,  Mr.  Frank  Plumlcy,  in  this  city  of  Northfield. 

If  through  the  bandage  covering  the  eyes  of  justice,  as  she  is  always 
represented,  the' French  commissioner  has  been  able  to  discover  that 
in  the  claims  of  his  countrymen,  as  submitted  to  our  joint  examination, 
the  amount  had  been  inflated  in  the  proportion  of  9  to  1 ,  what  could 
the  Venezuelan  commissioner  not  have  discovered,  animated,  as  it  is 
justly  surmised,  by  his  patriotic  sentiments,  which  had  been  submitted 
to  the  hardship,  as  my  colleague  justly  remarks  of — 
discussion  [which]  must  have  been  grievous  many  times  to  his  Venezuelan  sentiments 

from  those  332  claims  which  offer,  as  shown,  the  plainest  evidence  that 
it  has  been  pretended  that  A^'enezuela  should  pay  for  indemnity  for 
damages  an  amount  tenfold  greater  than  the  value  of  the  actual 
damages  sustained  ?  If,  because  in  order  to  succeed  in  preventing 
that  such  gross  injustice  be  done  by  the  mixed  commissions  to  which 
I  have  been  a  party,  my  colleague  considers  that  I  have  played  the 
part  of  a  lawyer  in  defense  of  my  country,  instead  of  that  of  an  impar- 
tial judge,  then  I  have  done  my  duty,  and  I  do  not  think  I  deserve  on 
that  score  the  censure  of  those  who  have  no  reason  to  desire  that  I 
should  not  have  defended  my  country. 

As  regards  the  method  adopted  by  the  French  commissioner  of  not 
supporting  his  decisions  and  opinions  by  arguments  in  order  to  dis- 
tinguish his  system  of  defense  from  mine,  I  have  nothing  to  say.  It 
is  enough  for  me  to  be  satisfied  that  I  have  fulfilled  my  duties  to  the 
utmost,  and  that  I  have  in  my  opinions  endeavored  to  follow  the 
standard  set  by  eminent  jurists  who  have  discharged  these  same  duties 
of  arbitrators  and  who  did  not  think  that  they  were  to  pass  their  sen- 
tences as  imperial  ukases,  but  that  such  sentences  were  to  be  based 
upon  the  exposition  of  the  principles  involved  and  upon  a  line  of  argu- 
ment growing  out  of  the  examination  of  such  principles,  laws,  and 
precedents.  Such  arguments  have  come  to  be  a  source  of  light  to 
those  who,  like  myself,  desirous  of  learning  how  not  to  err,  have  gone 
thither  to  dispel  shadows  of  darkness  in  their  intellectual  labors. 
Among  other  authorities,  see  the  six  large  volumes  of  Moore's  Inter- 
national Arbitrations;  the  volume  containing  the  enlightened  opin- 
ions of  the  commissioners  in  the  Ignited  States  and  Venezuelan  Claims 
Commi.ssions,  1889-1890,  and  Ralston's  Report.  Wnezuelan  Arbi- 
trations of  1903. 


288  COMPANY    GENERAL    OF   THE    ORINOCO    CASE. 

I  must  express  at  this  point  surprise  to  see  how  my  colleague  has 
construed  the  statements  I  made  to  him  at  the  sitting  of  May  7,  1903, 
that  I  would — 

take  these  [arguments]  into  consideration  and  see  if  it  would  be  possible  to  reach  an 
agreement . 

To  deduce  from  such  statement,  inspired  mily  by  my  desire  to  become 
acquainted  with  the  arguments  of  my  colleague,  to  see — if  I  was  con- 
vinced b}^  them— whether  we  could  reach  an  agreement  or  find  out 
whether  it  was  established  that  the  General  Company  of  the  Orinoco 
was  entitled  to  an  indemnification,  is  equivalent  to  deri^^ng  from  the 
(question  put  by  one  person  to  another,  "\V'hat  reasons  have  you  to 
demand  from  me  the  payment  of  that  bill?"  that  such  question  estab- 
lishes the  fact  that  the  debt  has  been  acknowledged. 

That  my  learned  colleague  should  appeal  to  such  a  line  of  circum- 
locutory arguments  in  support  of  his  opinion  in  favor  of  the  General 
Compam^  of  the  Orinoco  plainly  shows  that  in  the  store  of  arguments 
used  b}'  the  compan}^,  and  which  my  learned  colleague  produces  as  his 
own,  there  are  not  many  weighty  enough  to  bring  conviction  to  the  , 
honorable  umpire's  mind  of  the  sound  foundation  of  the  claim. 

The  French  commissioner  reafiirms  his  determination  in  the  brief 
under  discussion,  when  he  avers  that  he  abstains  from  following  me 
into  the  field  of  argument, 

believing  that  in  his  capacity  as  an  arbitrator  he  is  not  called  upon  to  present  arguments  in 
favor  or  against  one  of  the  two  parties,  but  only  to  examine  their  statements  and  to  decide 
in  favor  of  the  one  or  the  other. 

My  learned  colleague  adds: 

One  of  the  lawyers  of  the  Paris  bar,  Maître  Poincaré,  has  undertaken  to  defend  the  com- 
pany in  the  field  of  law,  answering  Doctor  Paul's  argimients.  The  penisal  of  the  brief 
(plaidoiñe)  prepared  by  M.  Poincaré  has  but  strengthened  me  in  the  opinion  which  I  had 
formed  after  having  studied  the  dossier  and  the  plea  of  my  colleague. 

Consequently,  M.  de  Peretti,  in  his  brief,  limits  himself  to  explaining 
his  reasons  for  granting  the  company  any  indemnification  for  eventual 
profits;  for  reducing  the  rate  of  interest  claimed  to  3  per  cent  until 
July  1,  1902,  when  the  estimate  made  by  the  comi)any  ends;  and  for 
granting  besides  a  supplementary  indemnification  for  interest  from 
that  date  until  the  day  of  the  final  decision,  fixed  at  1 ,000,000  bolivars, 
and  another  million  because  of  the  depreciation  of  the  bonds  of  the 
diplomatic  debt,  making  a  total  of  7,000,000  l)olivars. 

I  deny,  as  it  is  my  bounden  duty  to  do,  most  emphatically,  the 
unfounded  conjecture  my  learned  colleague  has  made  in  his  brief,  when 
he  states  that  I  would  not  be  the  only  one  among  my  enlightened 
countrymen  who  would  have  consented  to  acknowledge  my  country's 
liability  in  this  case,  and  conse<|Ucntly  admitted  that  an  ¡ndonininca- 
tion  is  due  the  company.     Tt  is  also  indispensable,  since  the  honorable 


ADDITIONAL    OPINION    OF   VENEZUELAN    COMMISSIONER.       289 

French  commissioner  is  willing  to  use  it  in  support  of  his  opinion,  that 
I  should  take  into  consideration  the  incident  of  the  Pietri-IIanotaux 
protocol  and  the  draft  of  an  ajireenient  signed  in  Paris  by  M.  Juan 
Pietri,  which  M.  de  Peretti  has  submitted  as  a  part  of  his  brief. 

Tlie  incident  in  question,  as  it  appears  in  the  opinion  of  my  learned 
colleague  is  as  follows  :  " 

In  1897  the  President  of  the  United  States  of  Vcnezeula  sent  to  Paris  a  semiofficial  pleni- 
potentiary, General  Pietri,  to  endeavor  to  renew  tlie  diplomatic  relations  intcrmpted 
between  the  two  countries  since  the  departure,  in  1895,  of  the  Marquis  de  Mondar,  French 
minister,  because  of  an  incident  which  to  reopen  here  is  unnecessary.  Mr.  Pietri  opened 
negotiations  with  the  Quai  d'Orsay  and  such  negotiations  resulted  in  the  signing  of  a  pro- 
tocol by  virtue  whereof  normal  relations  between  France  and  Venezuela  were  to  be  reestab- 
lished, provided  such  diplomatic  act  was  ratified  by  the  Congress  of  Venezuela. 

Annexed  to  said  protocol  there  was  a  convention  concluded  on  June  24,  1897,  between 
the  plenipotentiary  of  Venezuela  and  the  liquidators  of  the  General  Company  of  the  Orinoco, 
the  text  of  said  convention  being  attached  to  the  papers  (dossier)  in  the  claim.  Itwius  stipu- 
lated by  the  convention  that  said  company  by  way  of  a  compromise  agree  to  relin((uish  any 
further  claims  upon  payment  by  the  Venezuelan  Government  of  an  indemnity  of  ;3,(i(X),000 
bolivars. 

The  Venezuelan  Congress  did  not  ratify  said  protocol,  the  convention  remaining  therefore 
null  and  void.  However,  it  may  be  inferred  from  such  fruitless  endeavors  to  come  to  an 
agreement  that  there  has  been  a  Venezuelan  plenipotentiary  who  eight  years  ago  recognized 
the  right  to  a  considerable  indemnity  on  the  part  of  the  General  Company  of  the  Orinoco. 

The  Venezuelan  Congress  having  met  in  secret  session  to  examine  the  protocol  signed  by 
Messrs.  Hanotaux  and  Pietri,  I  have  been  unable  to  learn  the  reasons  of  its  rejection  by  said 
assembly.  It  is  possible  that  the  convention  subscribed  to  by  the  company  may  have  had 
sometliing  to  do  with  such  rejection.  But,  even  admitting  that  the  existence  of  said  con- 
vention had  been  the  only  cause  of  the  refusal  of  Congress  to  ratify  the  protocol,  .said  conven- 
tion does  not  lose  by  that  fact  its  character  as  a  document  of  great  value.     *     *     *     . 

So  much  for  the  history  of  the  incident  of  the  Pietri-Hanotaux 
protocol.  The  other  portion  of  the  document,  replaced  by  the  dots, 
with  which  my  colleague  ends  the  paragraph,  I  shall  not  reproduce 
in  this  answer.  They  belong  to  that  class  of  arguments  called  "'ah 
homine,"  so  generally  used  in  French  parliamentary  orator}^,  but 
which  are  misplaced  in  abstract  and  severe  debates  before  a  court 
like  this  one.  "VVliatever  be  the  opinion  the  French  commissioner 
may  have  formed  of  the  administration  and  public  opinion  in  Vene- 
zuela, will  surely  not  have  the  slightest  weight  in  the  mind  of  the 
honorable  umpire  when  he  shall  render  his  decision  in  the  case. 

M.  de  Peretti  is  in  the  right  when  he  states  that  the  convention  con- 
cluded between  Mr.  Pietri  and  the  liquidators  of  the  General  Com- 
pany of  the  Orinoco  acknowledging  to  the  latter,  by  way  of  a  com- 
promise, 3,600,000  bolivars,  had  something  to  do  with  the  refusal 
of  the  Congress  of  Venezuela  to  ratify  the  Pietri-Hanotaux  protocol, 
the  object  of  which  was  the  renewal  of  diplomatic  relations  between 
the  two  countries.  It  not  only  had  something  to  do  with  the  refusal, 
but  was  the  sole  cause  thereof.     Even  if  Venezuela  had  solicited  the 


a  Page  285. 
S.  Doc.  533,  59—1 19 


290  COMPANY    GENERAL    OF    THE    ORINOCO    CASE. 

renewal  of  the  relations,  for  which  Mr.  Pietri  had  received  instructions, 
Congress  was  compelled  to  refuse  to  ratify  the  protocol  tending  to 
such  renewal,  because  the  convention  annexed  as  a  condition  to  the 
end  in  ^^ew  represented  for  Venezuela  a  sacrifice  of  such  magnitude 
and  so  unjustified,  that  Congress  preferred  to  continue  depriving  the 
country  of  friendly  relations  with  France  to  subjecting  it  to  a  cen- 
surable negotiation.  General  Pietri  lacked  the  necessary  authority 
and  instructions  to  negotiate  with  the  General  Companj^  of  the  Ori- 
noco, and  even  the  officious  negotiations  which  were  intrusted  to  liim 
in  France  for  the  renewal  of  diplomatic  relations  were  ad  referendum, 
because,  such  relations  being  interrupted,  he  could  not  have  been 
invested  with  the  character  of  minister  plenipotentiarj^  to  the  Quai 
d'Orsay. 

If  from  the  officious  capacity  of  Mr.  Pietri  to  treat  with  the  Quai 
d'Orsa}"  of  the  renewal  of  the  diplomatic  relations  between  Venezuela 
and  France  and  from  the  character,  as  minister  plenipotentiary,  which 
was  vested  in  Mr.  Pietri  by  the  administration  of  1897  to  represent 
Venezuela  in  other  States  of  Europe,  the  French  commissioner  draws 
a  favorable  conclusion  when  he  says: 

It  may  be  inferred  from  such  fruitless  endeavors  to  come  to  an  agreement,  that  there  has 
been  a  Venezuelan  plenipotentiarj',  who  eight  years  ago,  recognized  the  right  on  the  part 
of  the  General  Company  of  the  Orinoco  to  a  considerable  indemnity. 

what  may  I  not  deduce,  as  the  Venezuelan  commissioner,  against  the 
justice  of  such  indemnification,  following  the  same  style  of  argument, 
upon  considering  that  it  has  not  been  a  Venezuelan  plenipotentiary, 
but  the  National  Congress,  consisting  of  eighty  plenipotentiaries  rep- 
resenting the  will  of  three  millions  of  inliabitants,  who  disapproved 
the  convention  signed  by  Mr.  Pietri,  because  the}^  believed  it  to  be 
unlawful  ? 

M.  de  Peretti  states  in  his  brief  that  the  perusal  of  the  j)leadings 
{plaidoirie)  of  Maître  Poincaré,  counsel  for  the  company,  who  dis- 
cusses m}'^  arguments,  has  come  to  confirm  him  in  his  opinion.  I  have 
read  the  brief  of  the  eminent  member  of  the  French  bar  and  lawyer 
of  the  court  of  appeals,  and  since  his  opinion  has  been  sought  for  by 
the  claimant  company  to  impugn  my  opinion,  I  must  examine  it  and 
reply  to  its  allegations. 

The  first  part  of  the  brief  and  opinion  of  Maître  Poincaré,  called 
"Exposition  of  Facts,"  contains  a  relation  based  upon  the  documents 
and  notes  produced  by  the  claimant  company,  making  a  l)etter  pres- 
entation of  the  same  papers,  statements,  and  letters  found  in  the 
case  (dossier)  of  the  company.  Of  such  exposition  of  facts  the  hon- 
orable umpire  can  only  take  into  consideration  for  his  decision  such 
facts  upon  which  both  parties  have  agreed  or  the  accuracy  of  which 
has  been  duly  established,  based  on  trustworthy  documents  showing 
the  facts  to  be  true. 


ADDITIONAL    OPINION    OF    VENEZUELAN    COMMISSIONER         291 

The  second  part  of  the  brief  under  consideration  is  called  ''Dis- 
cussion" and  is  divided  by  Maître  Poincaré  into  several  chapters  and 
sections  dealino;  with  the  different  (grounds  upon  which  the  company 
has  based  its  claim  for  indemnification,  classified  as  follows: 

First.  Lejial  and  decisive  efficacy  of  the  judgment  rendered  by  the 
high  Federal  court  against  which  the  ( ompany  opposes  denial  of  justice, 
based  upon  the  following  facts:  Irregularities  in  tlie  summons,  irregu- 
larities in  the  letters  rogatory,  irregularity  in  the  pleadings  {plai- 
dories). 

Second.  Good  grounds  for  the  claim  for  indemnification,  based  upon 
substantial  error  vitiating  the  consent,  failure  to  execute  its  obliga- 
tions on  the  part  of  Venezuela,  and  ñilfillment  of  its  obligations  on 
the  part  of  the  company. 

Third.  Conclusions:  The  amounts  of  the  claims  have  been  duly 
established  by  means  of  documentary  e\adence.  The  existing  dip- 
lomatic debt  is  now  worth  from  40  to  42  })er  cent.  That  which  is  to 
be  created  for  the  indemnifications  resulting  from  the  j)rotocol  of 
1902  shall  be  worth  even  less.  • 

For  the  sake  of  brevity,  in  this  additional  opinion  I  shall  examine 
only  such  points  of  the  opiniqn  of  Maître  Poincaré  as  are  indispensa- 
ble to  strengthen  the  arguments  in  ni}^  first  opinion  and  shall  also 
point  out  whatever  may  be  conducive  to  a  clearer  exposition  of  the 
juridical  doctrine  or  international  principles  invoked,  as  well  as  to 
the  first  estimation  of  the  facts. 

The  question  advanced  as  the  fundamental  grounds  for  this  case 
is  in  the  first  place  whether  the  sentence  of  the  Venezuelan  Federal 
court,  declaring  the  rescission  of  the  contracts  under  which  the  Gen- 
eral Company  of  the  Orinoco  operated  and  condemning  said  companv 
to  tlie  pajmient  of  a  certain  sum  and  judicial  costs,  is  a  final  or  decisive 
sentence  having  the  force  of  the  res  judicata  and  therefore  binding  and 
subjecting  the  company  to  all  its  consequences. 

The  General  Company  of  the  Orinoco,  four  years  after  such  sentence 
has  been  passed,  invoked  the  action  of  the  French  Government  in 
order  to  enter  a  protest  against  said  judgment,  claiming,  as  Mr.  Poin- 
caré states — 

that  it  has  been  the  victim  of  an  actual  denial  of  justice,  because,  in  the  first  place,  all  remedies 
against  administrative  and  governmental  action  Iwing  withheld  from  it,  mainly  bv  reason 
of  the  decree  of  August  8,  1890,  issued  under  pressure  by  Colombia,  and  the  arbitrary  seizure 
of  1893,  and  in  the  second  place  because  of  the  violations  of  both  public  and  private  law 
ejfecuted  not  only  during  the  proceedings  but  also  oustide  of  anj'  judicial  action. 

The  company  produces  no  proof  whatever  to  show  that  all  legal 
remedies  against  administrative  and  governmental  action  have  been 
\vithheld  from  it.  The  decree  of  August  8,  1890,  as  evidenced  by  its 
o\ni.  terms,  was  issued  in  behalf  of  the  large  interests  of  the  inhabitants 
of  the  region  where  the  tonca  bean  is  gathered  and  because  the  com- 


292  COMPANY    GENERAL    OF   THE    ORINOCO    CASE. 

pany  liad  suspended' the  purchase  of  the  bean  for  want  of  resources, 
and  the  Government  could  not  permit  the  destruction  of  the  interests 
and  means  of  subsistence  of  that  territory  already  threatened  with 
abandonment  on  the  part  of  the  company'  and  an  absolute  busuiess 
stagnation.  In  regard  to  the  seizure  of  1893,  subsequent  to  the  judg- 
ment, the  copies  subjoined  to  the  presejit  additional  opinion  in  sup¡)ort 
of  the  arguments  of  ni}'  first  opinion  will  shed  sufficient  light  to  bring 
conviction  to  the  mind  that  the  propert}'  the  company  had  abandoned 
on  the  banks  of  the  Orinoco  River  because  the  company  had  gone  into 
liquidation  and  was  unable  to  even  take  care  of  and  tr}'  to  preserve 
said  property  has  not  sufficed,  because  of  its  state  of  deterioration  and 
ruin  to  pay  for  the  debts  contracted  in  the  locality,  let  alone  those  for 
which  the  company  was  liable  to  the  nation  by  virtue  of  the  sentence 
of  the  Federal  court. 

Against  the  argument  I  have  put  forth  in  my  opinion  that,  according 
to  the  Venezuelan  Code  of  Procedure,  the  General  Company  of  the 
Orinoco  had  six  months  after  date  of  sentence  within  which  to  demand 
that  it  be  invalidated, «if  the  compan}^  had  or  believed  itself  to  have 
sufficient  grounds  to  ask  for  such  reversal,  Mr.  Poincaré  advances  the 
argument  that  the  sentence  of  the  court  was  in  itself  indisputably  a 
sovereign  decision,  not  open  to  any  remedy  or  appeal  whatever  before 
a  liigher  court.  It  is  true  that  such  decision  was  not  subject  to  appeal 
before  a  higher  court,  because  the  high  Federal  court  is  the  highest 
judicial  tribunal;  but  such  decision  was  open  to  the  remedy  of  invali- 
dation before  the  same  court,  according  to  Case  I,  article  538  of  the 
Code  of  Civil  Procedure  then  in  force,  or,  in  other  words,  the  failure  to 
issue  such  summons  when  they  are  necessary  to  continue  the  case,  if 
the  failure  has  not  been  remedied  by  the  party  invoking  the  same. 
Article  539,  quoted  in  his  opinion,  clearly  stipulates  that — 

such  caso  shall  be  tried  in  the  same  manner  as  the  case  upon  which  the  sentence  whose  invali- 
dation is  sought  was  tried  before  the  court  lohich  has  decided  the  case  in  the  last  resort 
{instance).^ 

M.  Poincaré  adds: 

There  was  nothing  to  be  gained  therefore  in  asking  the  invalidation,  as  this  could  not  be 
granted  except  for  a  special  cause,  and  the  most  important  grounds  of  complaint  could  not 
contribute  to  justify  such  a  step. 

One  of  these  grounds,  as  will  be  hereafter  .sho^^Tl,  was  failure  to 
notify  the  company's  attorney  to  make  his  pleadings.  The  learned 
and  expert  counsel  for  France  has  already  stated  that  such  failure, 
which  is  a  most  important  ground  for  complaint  iigainst  the  judgment , 
as  believed  by  the  claimant  party,  does  not  constitute  one  of  the  sjx'ciiil 
causes  to  demand  the  invalidation  of  the  sentence,  according  to  (he 


a  Art.  539.  Este  juicio  se  promoverá,  del  mismo  modo  que  la  demanda  sobre  que 
recayó  la  sentencia  cuya  invalidación  se  pide,  ante  el  tribunal  (pío  la  dictó  en  última 
instancia. 


ADDITIONAL    OPINION    OF    VENEZUELAN    COMMISSIONER.        293 

provisions  of  article  538  of  the  Code  of  Civil  Procedure.*  Notwith- 
standing that  such  notification  is  unnecessary  and  not  required  by  the 
Vene/Aiehni  law  of  procedure,  the  ('oni])any  uses  it  as  the  basis  u])on 
which  rests  its  main  ar<iunient  to  claim  that  the  sentence  of  the  Federal 
court  was  issued  against  it  without  previous  hearing  of  its  <h>fens(>  and 
that  c()nse([uently  the  sentence  is  invalid. 

The  lirst  cjiuse  of  invalidation  invoked  by  Maître  Poincaré  in  his  brief 
as  vitiating  the  form  or  proceedings  is  the  irregularity  of  the  sunmions 
to  answer  the  complaint.  The  counsel  for  the  defense  of  the  company's 
rights  bases  his  contention  to  that  effect  on  the  testimony  of  Mr.  Fiat, 
a  former  employee  of  the  company,  who  affirms  that  when  the  State's 
attorney  for  the  treasury  (fscal  nacional  de  hacienda)  entered  his 
action  before  the  high  Federal  coiu't  for  the  rescission  of  certain  con- 
tracts and  the  payment  of  an  indemnification  he  received  no  sunmions 
or  order  requiring  him  to  appear. 

It  is  true  that  in  the  records  of  the  high  court — the  brief  avers — 

mention  is  made  of  the  letter  of  the  secretary  of  tliat  juiisdietion,  dated  on  May  30,  1890, 
addressed  to  Messrs.  Fiat  and  I'lanas,  informino;  tiiem  tliat  tlie  eoin])any  liad  been  sued 
before  the  high  court. 

But  Messrs.  Fiat  and  Planas  iiave  always  declaied  that  they  had  not  received  such  letter 
and  Mr.  Fiat  has  added  that  it  was  only  while  reading  a  Caracas  newspaper  that  he  became 
aware  that  the  company  had  been  sununoned  to  appear  before  the  Federal  court.  It  was 
then  that  he,  of  his  own  accord  and  without  any  previous  summons,  went  to  the  secretary's 
office. 

It  can  not  be  doubted,  that  if  a  regular  summons  had  been  issued  to  Mr.  Fiat  or  Mr.  Planas 
or  if  any  notice  by  letter  had  been  given  to  them  of  the  action  entered  by  the  "fiscal,"  a 
receipt  should  have  been  demanded,  as  was  done  in  the  ca.se  of  all  subsequent  summonses. 
It  is  thus  shown  that  the  proceedings  were  irregularly  conunenced. 

What  appears  from  the  minutes  in  the  case  which  may  offer  reason- 
able grounds  for  the  deductions  of  the  attorney  presenting  the  brief 
under  consideration  ? 

At  the  end  of  the  complaint  entered  by  the  fiscal  the  following  reso- 
lution appears: 

Presidency  of  the  High  Federal  Court, 

Caracas,  May  .30,  1S90. 
[27  and  32.     Entered.] 

Summon  the  General  Company  of  the  Orinoco,  defendant,  whose  domicile  is  outside  of  the 
Republic,  and  serve  a  copy  of  the  foregoing  complaint,  to  appear  before  this  court  at  the 
sitting  of  the  tenth  working  day  after  .summoned  to  answer  the  action,  which,  in  the  name 
of  the  national  Govermnent,  the  State's  attorne}'  for  the  treasury  (fiscal  nacional  de  haciemla) 
has  entered.  And  whereas  it  appears  from  the  documents  produced  that  Messrs.  Andrés 
Fiat  and  Bernabé  Planas  have  held  powers  of  attorney  from  said  company,  let  them  be 
notified,  that  they  may  state  wliether  they  still  exercise  such  duties,  and  if  not,  a  counsel  for 
the  defense  {defensor  de  ausentes)  shall  be  appointed  as  requested. 

(Signed)  Carlos  Ukrutl-v. 

Manuel  Rendón  Sarmiento. 

o  For  text  of  Art.  538  see  p.  259,  note. 


294  COMPANY    GENERAL    OF   THE    ORINOCO    CASE. 

On  tlic  same  day  and  date  the  siinimonse»were  issued  to  Messrs.  Fiat  and  J'ianas  to  appear 
at  the  first  sitting  of  tiie  court  after  being  sunnnoned  for  llic  piirpos*'  aforesaid,  tlie  siiin- 
inonse,s  being  delivered  to  tiie  l)ailiir  of  tiiis  liigii  court. 

(Signed)  Kendún  Sarmiento. 

Secretary. 

At  the  session  of  tliis  daj',  June  2  (two  days  after  tlie  suniinoiise.s  weie  issued),  there 
appeared  Messrs.  Andrés  Fiat  and  Bernabé  Planas  and  stated  that  Mr.  Andjés  Fiat  is  now 
the  representative  of  the  General  Company  of  the  Orinoco  and  offers  to  produce  the  power  of 
attorney  at  the  session  of  next  Wednesday',  the  fourth  da}-  of  the  present  month. 
Subscribed  to — 

(Signed)  Cári-Os  Ukrltia. 

AxDRKs  Fiat. 

B.  Pl-ANAS. 

Rendón  Sarmiextí),  Secretary. 

These  are  followed  by  others  referring  to  the  filing  of  the  power  of 
attorney'  in  the  French  language;  appointment  of  an  interpreter  to 
translate  the  same;  his  acceptance  and  oath;  the  translation  of  the 
power  of  attorney,  and  the  order  of  the  presidency  of  the  high  Federal 
court  directing  that  the  original  power  of  attorney  be  returned  to  Mr. 
Fiat,  and  that  he  be  duly  summoned  to  appear  as  the  attorney  for  the 
company. 

Then  follows  an  entry  of  the  secretary,  whereby  it  appears  thtit  a 
certified  copy  of  the  complaint  was  made  and  delivered  to  the  bailiff 
to  execute  the  summonses  issued  to  the  defendants. 

As  a  part  of  the  record,  the  following  entry  appears: 

I  have  received  the  complaint  in  the  action  entered  by  the  national  Government  against 
the  General  Company  of  the  Orinoco,  of  which  I  am  the  representative.  Caracas,  June  19, 
1890.  (Signed)  Andrés  Fiat.  (Minutes  of  the  proceedings  had  before  the  high  Federal 
court,  a  certified  cop}'  of  which  I  submit  to  the  honorable  umpire,  in  Spanish  and  English, 
consisting  of  G  exhibits,  numbered  1,  2,  and  3,  respectively.) 

The  testimony  furnished  by  the  minutes  of  the  proceeilings  shows 
that  due  regularity  in  conformity  with  the  legal  precepts  was  observed 
in  summoning  Mr.  A.  Fiat  as  the  representative  of  the  General  Com- 
pany of  the  Orinoco,  and  also  establishes  the  fact  that  there  is  no  iruth 
in  the  declaration  of  Mr.  Fiat,  serving  as  a  basis  to  the  company's 
counsel  to  aver  that  the  proceedings  were  irregularly  commenced. 
In  regard  to  the  statement  which,  it  is  aiiirmed,  Mr.  Bernabé  Planas 
made  to  the  same  effect,  it  is  not  fv  und  among  the  numerous  docu- 
ments submitted  ])y  the  company,  so  that  no  other  conclusion  can  be 
drawn  except  that  the  writer  of  the  brief  was  induced  to  ailirm  a  most 
serious  fact  affecting  an  old  friend  of  the  company,  which  is  contrary 
to  actual  events. 

The  line  of  argument  contained  in  the  rest  of  this  cha})lcr  of  the 
brief  dealing  with  the  delay  in  summoning  Mr.  Fiat  and  answering  the 
com"|)laint  because  of  the  preliminary  proceedings  of  giving  notic(\  the 
filing  and  translating  of  the  power  of  attorney,  and  lh(>  amendment  of 
a  part  of  the  case  by  fixing  the  amount  of  the  indenmificalion  asked 


ADDITIONAL    OPINION    OF    VENEZUELAN    COMMISSIONER.        295 

for  is  so  inadequate  to  arrive  at  the  conclusion  that  Mr.  Fiat  found 
himself  deprived  of  all  means  of  defense,  and  that  such  condition  of 
inability  permeated  the  whole  proceedings,  that  I  do  not  deem  it  my 
dut}'  to  undertake  its  discussion,  such  assertions  clearly  revealing  the 
fact  that  Maître  Poincaré  is  not  familiar  with  the  method  of  pro- 
cedure in  contentious  cases  before  our  Venezuelan  courts,  and  that  his 
learning  and  talents  can  not  bridge  over  his  deficient  knowledge  in  the 
matter  of  our  adjective  legislation.  All  the  proceedings  of  the  high 
court  from  the  origin  of  the  case  in  all  matters  pertaining  to  the  sum- 
mons of  Mr.  Fiat,  the  representative  of  the  company,  are  strictly  in 
accordance  with  the  provisions  of  the  Code  of  Civil  Procedure  in  force 
at  the  time,  as  the  honorable  umpire  may  see  by  an  examination  of  the 
legal  provisions  referred  to  in  conjunction  with  the  proceedings  in  the 
case,  a  copy  of  which  I  subjoin  hereto. 

The  next  section  of  the  brief  in  cjuestion  deals  with  the  irregularity 
of  the  letters  rogatory  issued  by  the  president  of  the  high  Federal 
court  to  the  civil  judge  of  the  first  instance  of  the  city  of  Paris  and  to 
his  eminence  the  Cardinal,  chief  of  the  propaganda  in  Rome,  which 
letters  rogatory  were  delivered  to  the  representative  of  the  company, 
Mr.  Fiat,  personally  to  obtain  the  extraterritorial  evidence  he  had 
requested,  consisting  of  affidavits  of  witnesses  residing  in  Paris,  and  a 
statement  of  facts  recpested  from  his  eminence  the  Cardinal. 

Maître  Poincaré  maintains  that  diplomatic  channels  should  have 
been  used  to  forward  to  their  respective  destinations  the  letters  roga- 
tor}^,  and,  as  the  Government  of  Caracas  loiows  what  is  the  regular 
way  to  be  followed  to  obtain  the  desired  ends,  both  such  Government 
and  the  high  Federal  court  are  to  blame  if  the  interrogatories  were  not 
made  in  Paris  and  Rome;  that  such  conduct  could  not  have  been 
prompted  but  by  the  desire  to  prevent  that  the  requested  evidence  be 
obtained,  and  so  it  follows  that  the  General  Company  of  the  Orinoco 
was  deprived  of  its  most  essential  means  of  defense,  and  that  the  taking 
of  the  evidence  for  which  the  high  court  had  fixed  a  time — which  was 
insufficient — was  then  incomplete  of  necessity. 

The  counsel  defending  such  theory  adduces  in  its  support  the  prin- 
ciples laid  down  by  the  Institute  of  International  Law  in  its  session  at 
Zurich  in  1877,  which  I  have  already  had  the  opportunity  to  quote  in 
my  former  opinion,  to  wit: 

As  the  opinion  of  the  Institute  was  that  letters  rogatory  should  be  sent  directly  to  the  for- 
eign court  hj-  the  court  issuing  the  same. a 

The  learnetl  counsel  also  chotes  the  opinion  of  Mr.  Carlos  Calvo, 
who  makes  the  following  statement  in  his  Treatise  on  International 
Law,  Volume  II.  section  889:  ^ 

a  Page  2.58. 

b  II  résulte  (le  principe  de  l'indépendance  des  nations  que  le  juge  étranger  n'est  pas 
obligé  d'accepter  la  commission  rogatoire;  mais  l'usage  des  nations  a  introduit  la  règle 


296  COMPANY    GENERAL    OF   THE    ORINOCO    CASE. 

From  the  principle  of  the  independence  of  nations  it  follows  that  the  foreign  court  is  not 
obliged  to  accept  letters  rogatory,  but  usage  among  nations  has  introduced  the  rule  that 
foreign  courts  accept  such  request  and  proceed  to  take  the  necessar}-  steps  in  the  matter, 
except  in  such  casos  where  such  acts  may  impair  the  sovereignty-  of  the  country  or  the  rights 
of  its  citizens.  This  is  why  letters  rogatory,  as  a  general  rule  are  not  sent  to  the  courts  directly 
but  througli  diplomatic  channels,  so  that  the  Government  may  examine  the  same  before 
directing  their  execution,  in  order  to  become  satisfied  that  they  do  not  contain  anything 
contrary  to  the  laws  of  the  State.  In  case  letters  rogatory  should  be  .sent  directly  from 
abroad  to  a  court  they  must  be  forwarded  immediately  to  the  minister  of  justice. 

M.  Poincaré  adds: 

And  let  us  remark  tliat  Mr.  Calvo's  opinion  is  later  than  that  of  the  Institute  of  Inter- 
national Law,  becau.se  Mr.  Calvo  in  section  894  makes  reference  to  that  authority  errone- 
ousl}?^  quoted  by  Venezuela. 

The  learned  counsel  also  invokes  the  opinion  of  Dalloz,  Répertoire 
Général,  Instruction  Civile,  No.  83,  as  follows: 

Our  courts  are  frequently  called  upon  by  foreign  courts.  An  order  of  the  minister  of 
justice  {Garde  des  Sceaux)  contains  the  following  rules  to  be  okserved  in  similar  cases: 
Courts  must  not  comply  with  any  letters  rogatory  in  civil  matters  coming  frotn  abroad 
unless  they  are  transmitted  to  them  through  the  ministry  of  justice,  who  in  turn  leceives  f  liem 
from  the  minister  of  foreign  ailairs  with  the  translation,  as  the  ca.se  may  be,  after  examina- 
tion. *  *  *  Letters  rogatory  in  civil  matter  must  be  executed  by  the  court  without 
necessary  intervention  of  the  parties  concerned.  Notwithstanding  this  su(;h  parties  are  free 
to  intervene  and  in  order  to  foster  the  proceedings  may  ask  the  clerk  to  issue  letters  rogatory. 
Beyond  such  cases  of  spontaneous  intervention  of  the  parties  or  one  of  them  the  letters  rogatoiy 
are  executed  upon  request  of  the  proper  judicial  authorities.  The  acts  performed  in  the 
execution  of  the  letters  rogatory  are  .sent  by  the  court  to  the  minister  of  justice  with  a  cer- 
tified memorandum  of  the  costs,  and  the  documents  are  forthwith  transmitted  to  the  minister 
of  foreign  affairs." 

M.  Poincaré  concludes — 

Thus  the  parties  are  not  called  upon  to  transmit  the  request.  They  have  only  power  of 
intervention  during  the  execution  of  the  letters  rogatory. 

que  les  juges  étrangers  acceptent  cette  mission  et  procèdent  aux  actes  d'instruction 
qu'elle  a  pour  objet,  excepté  dans  le  cas  où  ces  actes  porteraient  atteinte  aux  droits  de 
souveraineté  du  pays  ou  aux  droits  des  nationaux.  C'est  pom  quoi  les  commissions  roga- 
toires,  en  général,  ne  se  transmettent  pas  aux  tribunaux  ou  aux  magistrats  étrangei-s 
directement,  mais  par  la  voie  diplomatique,  de  manière  que  le  gouvernement  puisse  les 
examiner  avant  d'en  autoriser  l'exécution  pour  s'a.ssurer  qu'elles  ne  contiennent  rien  de 
contraire  aux  lois  de  l'Etat.  Dans  le  cas  où  une  commission  rogatoire  .serait  tran.smise 
directement  de  l'étranger  à  un  magistrat,  celui-ci  doit  l'envoyer  immédiatement  au 
ministre  de  la  justice.  (Calvo,  Le  Droit  International  Théorique  et  Pratique,  5*' édition, 
sec.  889.  ) 

«Nos  tiibunaux  sont  .souvent  délégués  par  les  juges  étrangers;  une  instruction  de  M. 
le  garde  des  sceaux  contient  les  règles  à  suivre  en  pareil  cas.     Elle  est  ain.^i  connue: 

Les  magistrats  ne  doivent  <l(''fér(T  aux  commissions  rogatoin's,  en  muti^re  i  i  vile  qui  viennent  do 
l'étranger,  autant  qu'elles  leur  sont  transmises  parle  ministre  de  justice,  qui  li'snçoit  du  mi.nstri'ilcs 
affaires  étrangères,  avœ  la  traduction,  s'il  y  a  lieu,  après  examen.  *  *  ♦  Les  comnii.'fsions  roga- 
toires  en  matière  civile  ou  pour  des  faits  qui  pourraient  donner  lieu  à  une  action  rivil",  doivent  itre 
exécutées  par  li'.s  magistrats  sans  intervention  nécessaire  des  parties  intéressé,  s.  Tout  fois,  les  par- 
ties sont  libres  d'intervenir,  et  alors,  pour  motiver  leurs  diligences, elles  pouvi  nt  d<  niauderMiign  flier 
une  expédition  do  la  commission  rogatoire.  Hors  le  cas  de  l'intervention  spontanée  des  parties  ou 
de  l'une  d'elles,  les  commissions  rogatoires  sont  exécutoires  à  la  requête  du  ministère  puMie.  Les 
actes  qui  constatent  l'exécution  d'iuie  commission  rogatoire  sont  envoyés  par  leparijuet  aiiininistère 
de  la  justice,  avec  un  état  do  frais  visé  les  pièces  sont  ensuite  transmises  au  ministère  des  alTaires 
étrangères. 


ADDITIONAL    OPINION    OF    VENEZUELAN    COMMISSIONER.       297 

The  authorities  quoted,  far  from  destroying  what  I  have  maintained 
in  my  opinion  in  support  of  the  doctrine  estabHshed  by  the  Institute 
of  International  Law  in  its  meeting  in  Zuricli,  comes  to  confirm  my 
argument  in  all  its  conclusions. 

There  are  two  orders  of  facts  of  an  entirely  different  character 
which  Maître  Poincaré  confoimds  to  the  extreme  of  pointing  out  a 
difference  between  the  Institute  of  International  Law  antl  Mr.  Calvo, 
which  does  not  really  exist  in  this  matter. 

One  of  these  points  is  the  act  of  a  court  addressing  to  a  foreign  court 
a  petition  praying  it  to  perform  within  its  jurisdiction  certain  acts 
or  proceedings,  and  to  this  end  the  letters  rogatory  are  addressed 
directly  from  one  court  to  the  other.  The  other  point  is  that  of  the 
transmittal  of  said  letters  rogatory  addressed  by  a  court  to  another, 
which,  according  to  the  Institute  of  International  Law,  may  he  made 
through  diplomatic  channels,  and  according  to  Calvo  must  he  always 
made  through  such  channels  and  not  otherwise. 

Calvo,  in  section  889,  already  quoted,  ñirther  says:" 

The  request  for  such  cooperation  is  made  by  a  special  letter  whereby  the  court  or  judge 
concerned  asks  the  cooperation  of  a  foreign  court  or  judge  or  jvayft  such  court  or  judge  to 
perfoitn  within  the  proper  jurisdiction  certain  acts  or  proceedings  that  the  petitioner  is 
unable  to  perform. 

To  solicit  or  pray  for  the  cooperation  of  such  foreign  judge  it  is 
necessary  to  address  him  directly  in  writing  a  letter  rogatory  as  done 
by  the  high  court  to  the  judge  of  the  Seine  in  the  following  form  quoted 
by  Maître  Poincaré. 

United  States  of  Venezuela:  In  their  name  the  president  of  the  high  Federal  court  to  the 
citizen  civil  judge  of  the  first  instance  of  the  city  of  Paris. 

And  at  the  end  of  the  petition — 

Now,  therefore,  I  pray  the  citizen  judge  of  the  first  instance  of  tlie  city  of  Paris  to  be 
pleased  to  have  the  present  petition  (letters  rogatory)  executed,  pledging  reciprocity  in 
similar  cases  from  the  courts  of  the  Republic. 

To  this  M.  Poincaré  says  that  "it  is  nothing  but  a  mere  courtesy." 
Exactly  ;  such  courtesy  is  what  is  expected  to  be  used. 

The  petition  or  letters  rogatory  which  a  court  or  judge  addresses  to 
another  being  prepared,  for  which  it  is  necessary  that  the  party  con- 
cerned should  go  to  the  office  of  the  secretar}^  (clerk)  of  the  court  and 
furnish  the  same  w^ith  the.  necessary  stamped  paper  upon  which  to 
extend  the  writ  in  reference  to  the  evidence  required,  the  correspond- 
ing revenue  stamps,  fees  for  copies  and  translation  when  such  is  neces- 
sary; then  such  acts  should  be  performed  as  are  necessary  for  the 

o  La  demande  de  cette  coopération  se  fait  au  moyen  d'une  lettre  spéciale  par  laquelle  le 
tribunal  ou  le  magistrat  qui  se  trouve  dans  ces  circonstances  sollicite  le  concours  d'un  tri- 
bunal ou  d'un  magistrat  étranger,  ou  le  prie  d'accomplir  dans  l'étendue  do  son  ressort 
quelque  acte  de  procédure  ou  d'instruction  qu'il  ne  peut  faire  lui-même.  (Calvo,  Le  Droit 
International  Théorique  et  Pratique,  5''  édition,  sec.  889.) 


298       COMPANY  GENERAL  OF  THE  ORINOCO  CASE. 

transmission  of  tlio  letters  rogatory  addressed  to  the  foreign  court  or 
judge  through  the  diplomatic  channels.  All  these  acts  should  be  per- 
formed 1)V  the  interested  party,  who  receives  tlie  papers  in  order  to 
foster  their  transmittal  hy  applying  to  the  department  of  foreign 
affairs. 

On  what  printij)lo  of  international  law  or  on  what  authority,  ancient 
or  modern,  could  the  theory-  be  founded  that  it  behooves  the  judge  in 
the  case  or  the  contrary-  party — as  in  the  case  in  point,  the  Govern- 
ment of  Venezuela — to  perform  ofllciously  acts  which  only  the  inter- 
ested part}^  is  able  to  attend  to  with  due  diligence,  defraying  the  neces- 
sary expenses  and  fostering  their  éxecution?  And  so,  Mr.  Fiat,  the 
attorney  for  the  company,  assisted  in  its  defense  by  two  of  the  most 
distinguished  lawj-ers  of  Caracas,  Drs.  Diego  Bautista  Urbaneja 
and  Ramón  F.  Feo,  who  received  the  petitions  or  letters  rogatory 
addressed  to  Paris  and  Rome,  does  not  incur  any  liability  because  he 
did  not  employ  in  the  transmittal  of  such  papers  the  diplomatic  chan- 
nels, nor  did  he  use  the  good  offices  of  the  department  of  foreign  affairs 
in  Caracas,  nor  did  even  apply  to  such  office,  and  the  Government  of 
Venezuela,  the  contrary  party,  is  to  be  made  liable  for  such  a  negli- 
gence, since  it  can  not  be  supposed  it  was  ignorance  or  the  deliberate 
purpose  of  not  giving  the  letters  rogatory  the  proper  course  so  as  to 
claim  later  on  that  the  proceedings  were  vitiated. 

According  to  M.  Poincaré's  theory,  the  Government  of  Venezuela 
and  the  liigh  Federal  court,  the  contrary  party  and  the  judge  in  the 
case,  should  perform  in  regard  to  j\ir.  Fiat,  the  attorney  for  the  com- 
pany, the  duties  of  counselors  at  law%  and  taking  him  ])y  the  hand,  to 
go  with  liim  to  the  Venezuelan  foreign  office,  legations,  or  consulates, 
which  were  to  attest  to  the  respective  signatures  and  then  to  the  post- 
office  where  the  papers  were  to  be  stamped,  certified,  and  mailed,  not- 
withstanding the  clearly  manifested  purpose  of  Mr.  Fiat  when  hv  per- 
sonally received  the  letters  rogatory  of  not  trusting  to  others  such 
steps  for  the  transmission  of  the  documents. 

Our  Code  of  Civil  Procedure  contains  an  article,  reproduced  in  all 
such  codes,  which  has  been  in  force  in  the  Repiil)li(',  to  this  eilVct  :" 

In  civil  matters  the  judge  can  not  take  action  against  a  party  except  at  the  recjuestof  tiie 
other  party,  unless  authorized  by  law  to  proceed  othcnvise. 

Another  analogous  article  provides  that — ^ 

The  court  shall  maintain  the  parties  in  the  enjoyment  of  such  rights  and  titles  as  ai"e  com- 
mon to  both  without  preference  or  inequality,  as  well  as  in  the  enjoyment  of  such  rights  and 
titles  as  are  privative  to  each  party,  respectively,  according  to  the  provisions  of  law  or  the 
différent  conditions  represented  in  the  action.     But  the  court  sliall  not  allow  such   parties 

«Art.  14.  En  nuiteria  civil  el  Juez  no  puede  proceder  sino  li  instancia  tic  parto,  salvo  el 
caso  en  que  la  ley  lo  autorice  para  obrar  de  olicio. 

b Art.  27.  Los  tribunales  maiitciuiniu  á  las  partes  en  los  derechos,  facultades  y  goces 
que  son  comunes  (i  ellas,  sin  pieferen<ia  ni  desigualdades,  y  en  los  privativos  de  cada  una 
de  ellas,  respectivamente,  según  los  acuerde  la  lev  li  la  diversa  condición  que  tengan  en  el 
juicio.     Pero  no  podran  permitir  ni  permitirse  ellos  c.xtralimitacioues  de  nigún  género. 


ADDITIONAL   OPINION    OF   VENEZUELAN   COMMISSIONER.       299 

nor  allow  hei-solf  to  exceed  the  authority  of  their  respective  rights  or  jurisdiction  in  any  case 
whatever.     (Arts.  14  and  27,  Code  of  Civil  Procedure,  1897.) 

It  was  not  facultative  of  the  liiiih  Federal  court  to  perform  of  its 
own  accord  acts  tendino;  to  the  transmittal  of  the  letters  ro<iatory,  but 
in  this  case,  as  well  as  in  all  proceedings  in  the  action,  the  court  had  to 
act  b}^  request  of  one  of  the  parties,  as  the  Liw  does  not  authorize  it  to 
act  on  its  own  authority.  To  act  otherwise  would  be  to  exceed  its 
authority,  an  act  punishable  by  our  laws. 

Mr.  Fiat  has  not  even  pretended  to  maintain  the  fact  that  he 
endeavored  to  obttiin  from  the  court  the  transmission  of  the  letters 
rogatory  through  diplomatic  channels,  but,  on  the  contrary,  he  has 
confessed  that  he  requested  and  obtained  said  letters  and  sent  them 
directly  to  Paris  to  Mr.  Delort,  without  he  or  his  legal  advisers — who 
could  not  have  been  ignorant  of  such  means  of  procedure — ever  think- 
ing that  diplomatic  channels  should  be  employed.  The  consequences 
of  such  omission,  if  it  had  any  consequences  on  the  legal  action,  must 
be  suffered  solely  by  the  General  Company  of  the  Orinoco  and  in  no 
way  by  the  opposite  party  or  the  Government  of  Venezuela. 

The  brief  of  the  company's  counsel  now  deals  with  the  third  cause 
or  grounds  for  invalidation  of  the  sentence — i.  e.,  irregularitj'  in  the 
pleadings  {'plaidoiries).  M.  Poincaré  stops  to  discuss  the  fact  that 
the  representative  of  the  company  was  not  summoned,  nor  were  his 
counsel  to  enter  their  pleadings,  and  the  only  party  present  at  the 
time  set  for  such  pleadings,  according  to  the  records  of  the  case,  was 
the  State's  attorney  iHscal  nacional  de  hacienda).  I  have,  in  my  first 
brief,  most  carefully  examined  the  matter  and  have  established,  by 
quoting  the  respective  articles  of  the  Code  of  Civil  Procedure,  and  the 
chronological  examination  of  the  minutes  of  the  case,  that  the  action 
was  never  suspended  for  motives  wliich  were  imputable  to  the  parties 
and  that  consequently,  in  conformity  with  the  provisions  of  law, 
the  liigh  Federal  court  directed  that  the  pleadings  should 'be  entered 
without  the  necessity  of  issuing  summons  to  the  parties  or  their  repre- 
sentatives. Had  the  court  acted  or  decreed  otherwise  it  would  have 
been  contrary  to  a  provision  specifically  set  forth  by  the  same  code,  to 
this  effect  : 

After  summons  have  boon  issued  to  answer  the  complaint  there  is  no  need  of  further  sum- 
mons for  any  other  incident  of  the  proceedings  nor  the  summons  issued  shall  susjxnd  the  pro- 
ceedings, unless  specially  provided  for  to  the  contrary.o 

Such  action  on  the  part  of  the  court  would  have  been  contrary  to 
the  provisions  of  article  394  of  the  same  code,  reading  thus:^ 

a  Art.  146.  Hecha  la  citación  para  la  litis-contestación,  no  habrá  necesidad  de  practi- 
carla de  nuevo  para  ningún  otro  acto  del  juicio,  ni  la  que  so  mando  verificar  suspenderá  el 
procedimiento,  á  menos  que  resulte  lo  contrario  de  alguna  dispsición  especial  de  la  ley. 

&  Art.  394.  Concluida  la  relación  se  oirán  los  informes  verbales  de  las  partes,  de  sus  abo- 
gados ó  apoderados,  y  se  leerán  los  que  presentaren  por  escrito,  los  cuales  se  agregarán  á 
los  autos. 


300  COMPANY    GENERAL    OF   THE    ORINOCO    CASE. 

Upon  the  conclusion  of  the  reading  of  flic  papers  in  the  caso  (expediente),  the  oral  state- 
ments of  the  parties  or  their  attorneys  or  representatives  shall  lie  made  or  read,  if  in  writing, 
as  the  case  may  be,  and  added  to  the  record. 

This  article  does  not  direct  that  the  parties  be  summoned,  and  no 
such  provision  is  made,  because  the  parties  to  the  action  are  const ruc- 
tivel}'  ])resent  durinji  the  hearing  from  the  day  the}'  are  summoned  to 
answer  the  complaint  without  further  sunmions,  except'in  such  cases 
as  are  specially  ])rovided  for  by  the  law. 

The  high  Federal  court  is  not  authorized  to  alter  or  modify  the 
method  laid  down  by  our  laws  of  procedure,  but,  on  the  contrary,  must 
adhere  strictly  to  its  provisions.  Any  act  whatever  in  violation  of 
such  provisions  is  null  and  void.  It  was  based  upon  such  considera- 
tions, and  in  view  of  the  origmal  record  of  the  case  existing  in  the 
archives  of  the  high  Federal  court  that  I  stated  in  my  former  opinion 
that,  in  view  of  the  fact  that  the  sentence  '  '  that  the  parties  be  notified  " 
was  not  duly  authorized  by  the  president  of  the  court  l)y  means  of  a 
legal  writ,  order,  or  decree  under  his  signature,  but  was  only  a  state- 
ment under  the  signature  of  the  clerk  of  the  court  {secretario)  who,  in 
conformity  with  the  laws  governing  our  method  of  procedure,  has  no 
other  powers  beyond  the  act  of  attesting  or  certif\'ing  to  any  judicial 
acts,  decrees,  orders,  or  judgments  of  the  justices  of  the  court,  which 
should  always  be  made  in  wTiting  and  under  their  hand,  I  was  con- 
vinced that  the  Federal  court  had  not  ordered  such  notification  to  be 
made. 

Maître  Poincaré  profits  by  this  remark,  which  I,  iii  my  capacity 
of  an  ar))itrator  was  entitled  to  make,  to  aflirm  that  the  Venezuelan 
Government — 

found  itself  obliged  to  make  tlu^  unfortunate  admission  that  the  sentence  ''that  the  parties 
be  notified"  has  been  the  exclusive  act  of  the  clerk  (secretario)  and  that  tlie  court  was  not  a 
party  to  the  order. 

It  was  not  the  Government  of  Venezuela  that  made  the  statement 
in  question,  but  the  ctmimissioner  for  Venezuela,  in  view  of  the  legal 
provisions  governing  the  case  and  of  the  minutes  in  the  record.  My 
opinion  was  based  upon  the  fundamental  fact  that  the  law  does  not 
provide  that  the  parties  be  summoned  when  the  hearing  ha.s  not  l)een 
suspended  because  of  acts  of  commission  or  omission  for  which  the 
parties  are  answerable.  My  opinion  points  out  the  way  to  demon- 
strate that  the  high  Federal  court  did  not  infringe  any  j)rovisions  of 
law,  as  might  be  ai)parent  from  the  sentence  in  reference,  which  is 
due  to  an  error  of  the  clerk,  having  no  validity  whatever. 

Mr.  Poincarre  states  in  his  ])rief  that  the  \'eneziiclan  lawyers,  Drs. 
Diego  B.  Urbanejti  luid  Ramón  F.  Feo,  agree  in  tlicir  stalenient  that 
the  General  Company  of  the  Orinoco  not  having  been  suniinoned  to 
appear  on  the  day  set  for  the  ])leadings,  articles  lOi)  and  l()2  of  the 
Code  of  Civil  Proce(hn-(>  (ISSO)  "  had  been  violated.      1  have  not  foinul 


"  See  p.  'JM,  note. 


ADDITIONAL    OPINION    OF    VENEZUELAN    COMMISSIONER.        301 

among  the  documents  and  papers  produced  by  the  company  any  writ- 
ten opinion  prepared  or  signed  by  said  jurists  to  which  cre(Ut  might 
be  given. 

The  company  has  pretended  in  several  documents  that  said  lawyers 
had  rendered  a  favorable  opinion  on  this  and  other  important  matters, 
but  such  opinions  duly  signed  and  verified  have  not  been  produced. 
The  fact  is  worthy  of  consideration  that  Dr.  llamón  F.  Feo  being  still 
in  Caracas,  and  it  being  an  easy  matter  for  the  company  to  obtain  a 
statement  from  him  during  the  sittings  of  the  commission  in  that 
city  and  his  testimony  on  the  facts  relating  to  the  action  before  the 
high  Federal  court,  such  steps  have  not  been  taken.  It  can  not,  there- 
fore, be  accepted  that  the  authority  and  learning  of  such  lawyers 
be  invoked  when  no  proofs  are  oñ'ered  that  they  are  or  have  been  of 
the  opinion  ascribed  to  them  in  this  matter. 

The  writer  of  the  brief  states  that  the  sentence  passed  was  not 
notified  either  to  the  representative  of  the  company,  Mr.  Fiat,  who 
remained  in  Caracas  for  over  a  year  after  the  sentence  was  passed,  or  to 
the  lawyers  of  the  company,  who  lived  in  that  city,  nor  even  to  the 
liquidators.  This  requisite  of  notification  is  not  prescribed  by  our 
law  of  procedure,  except  in  criminal  cases.  In  civil  actions,  as  it 
has  been  shown,  the  parties  are  deemed  to  be  present  at  the  trial 
from  the  time  they  are  first  summoned  to  answer  the  complaint  and 
must  be  aware  either  personally  or  through  their  attorneys  of  all  the 
stages  of  the  proceedings.  It  should  be  noticed  that  at  the  date  of 
the  sentence,  October  14,  1891,  Mr.  Fiat,  although  still  residing  in 
Caracas,  was  not  the  representative  of  the  General  (Vmipany  of  the 
Orinoco,  in  liquidation,  as  he  had  resigned  since  October  11,  1890; 
that  the  company  appointed  Mr.  Bernal)é  Planas  its  representative, 
and  that,  tliis  gentleman  having  refused  to  accept  such  commission, 
the  company  then  decided  to  send  Mr.  Bertliier,  who  arrived  at  Cara- 
cas about  the  end  of  October,  ,1890,  leaving  some  time  in  July,  1891. 
Messrs.  Urbaneja  and  Feo  do  not  appear  as  being  representatives  of 
the  company  during  the  proceedings  before  the  high  Federal  court, 
but  simply  the  counsel  for  Mr.  Fiat  at  the  beginning  of  the  action. 
(See  complaint  to  the  minister  for  foreign  afi'airs  in  France  by  the  li(|iii- 
dators  of  the  company,  folio  47,  and  the  minutes  of  the  proceedings.) 

As  regards  the  notice  to  the  liquidators  residing  in  Paris,  the  Fed- 
eral court  must  have  been  ignorant  of  the  fact  that  such  liciuitlators 
existed,  as  it  does  not  appear  that  the  court  was  informed  that  the 
company  had  gone  into  liquidation,  notwithstanding  the  fact  that 
such  steps  were  taken  on  May  30,  1890,  two  days  after  the  filing  of 
the  complaint  before  the  liigh  court.  The  company'  kept  the  Vene- 
zuelan authorities  and  especially  the  high  Federal  court  ignorant  of 
the  fact  that  it  had  gone  into  li(iuidation — a  grave  omission  which 
sufficiently  explains  the  abandonment  of  its  representation  during 


302  COMPANY    GENERAL    OF   THE    ORINOCO    CASE. 

the  proceedings,  the  want  of  unity  and  cohesion  in  the  acts  for  the 
defense,  the  cHliicuUies  liad  with  the  letters  rogatory,  and  the  non- 
appearance of  the  new  attorney,  Mr.  Bertliier,  at  the  hearing,  as  he 
was  then  exclusively  engaged  in  eifecting  an  extra-judicial  compro- 
mise whicli  would  put  an  end  to  the  legal  action  and  insure  a  new 
contract  to  the  company  in  liquidation. 

In  the  second  chapter  of  the  brief  under  consideration,  under  the 
head  of  'Bien  fondé  de  la  demande,''  the  author  directs  all  his  efforts 
in  support  of  the  following  claims: 

First.  That  the  agreements  entered  into  by  the  Government  of 
Venezuela  and  the  company  are  vitiated  from  their  origin,  because 
of  dissimulations  wliich  have  substantially  altered  the  convention 
and  which  permitted  the  Venezuelan  Government  to  impose  upon  the 
consent  of  the  General  Company  of  the  Orinoco. 

Second.  That  in  the  execution  of  the  contract  the  Government  has 
not  kept  the  contracted  obligations. 

By  wa}'  of  introduction,  the  author  of  the  brief  lays  down  the  fol- 
lowing premises  : 

It  is  upon  the  basis  of  equit}'^  that  the  arbitration  commission  must  pass  sentence. 

It  has  been  admitted  that  such  should  be  the  nde  controlling  mattei-s  pending  Wtween 
Venezuela  and  other  States,  and  the  protocol  relating  to  those  of  the  United  States  has 
estabhshed  in  this  connection  a  rule  applicable  in  this  instance  by  assimilation:  "The  com- 
missioners, or  in  case  of  their  disagreement,  the  umpire,  shall  decide  all  claims  upon  a  basis 
of  absolute  equity,  without  regard  to  objections  of  a  technical  nature  or  of  the  provisions  of 
local  legislation." 

It  is  not  possible  to  admit  the  principle  of  assimilation  advanced  by 
Maître  Poincaré  in  regard  to  the  claims  submitted  to  the  decision  of 
the  umpire,  according  to  the  terms  of  the  Paris  j^rotocol  of  February 
19,  1902.  The  terms  of  such  agreement  and  those  of  the  Washington 
protocol  of  1903  have  no  similarity  whatever;  on  the  contrary,  the 
contracting  parties  were  very  careful  to  declare  in  the  final  paragraph 
of  article  2  of  the  Paris  protocol  controlling  the  present  commission, 
that  the  procedure  adopted  for  the  examination  and  settlement  of  the 
claims  referred  to  in  articles  1  and  2,  were  not  instituted  but  as  an 
exception,  and  did  not  invalidate  the  convention  of  1885  :  and  that  by 
article  5  of  this  convention  the  high  contracting  parties  agreed  that  : — 

leurs  représentants  diplomatiques  n'interviendront  point  au  sujet  des  réclamations  ou 
plaintes  des  particuliers  concernant  les  affaires  qui  sont  du  ressort  de  la  justice  civile  ou 
pénale,  d'après  les  lois  locales,  à  moins  qu'il  ne  s'agisse  de  thnis  de  justiee  ou  de  retards  en 
justice,  contraires  à  l'usage  ou  il  la  loi,  de  l'ine.xécution  d'un  jugement  délinitif.ou  en  lin,  des 
cas  où,  malgré  l'épuisement  des  moyens  légaux,  il  y  a  violation  ésidente  ties  traités  t)u  des 
régies  du  droit  des  gens.o 

aTheir  diplomatie  agents  shall  not  interfere  in  the  claims  or  complaints  of  private  parties 
relating  to  such  mattera  as  come  under  the  jurisdiction  of  the  civil  or  i>enal  laws,  according 
to  local  legislation,  unless  in  cases  of  denial  «/"justice  or  delay  in  the  a<lminist  ration  of  justice 
contrary'  to  usage  or  law,  or  failure  to  execute  a  final  judgment,  or,  in  line,  in  such  ca.ses  where, 
notwithstanding  (h(>  fact  that  all  legal  means  have  been  exhausteil,  there  is  an  evident  viola- 
tion of  the  treaties  or  of  the  rules  of  the  law  of  nations. 


ADDITIONAL   OPINION   OF    VENEZUELAN    COMMISSIONER.       303 

If  the  declaration  that  the  procedure  adopted  to  submit  to  the 
examination  of  a  mixed  commission  tlie  claims  of  French  citizens  as  an 
exceptional  method,  which  ivas  not  to  invalidate  the  convention  of  1885, 
means  anything,  then  it  is  as  plain  as  daylight  that  this  commission  is 
bound  to  respect  the  sentences  or  decisions  passed  by  the  "S'enezuelan 
courts  in  accordance  with  local  legislation  in  such  matters  as  come 
under  the  jurisdiction  of  the  civil  or  penal  laws,  and  only  in  such  cases 
in  which  there  is  a  denial  of  justice  or  delay  in  the  administration  of  jus- 
tice, contrary  to  usage  or  law,  or  failure  to  execute  a  final  judgment,  or, 
in  fine,  in  such  cases  where,  notwithstanding  the  fact  that  all  legal 
means  have  been  exhausted,  there  should  exist  an  evident  violation  of 
the  treaties  or  rules  of  the  law  of  nations,  that  this  commission  may 
approve  of  diplomatic  interference  and  so  fix  the  liability  of  the 
Government  of  Venezuela,  if  any. 

In  the  claim  entered  b}'  the  General  C'ompan}'  of  the  Orinoco  there 
has  been  submitted  to  this  commission  a  matter  which  comes  under  the 
jurisdiction  of  the  Venezuelan  civil  courts,  as  the  rescission  of  the  con- 
tracts obtained  b}"  the  General  Company  of  the  Orinoco  for  the  exploi- 
tation of  all  mineral  and  vegetable  products  of  the  alto  (upper)  Orinoco 
and  the  Amazonas  for  a  term  of  thirty-five  years  and  that  of  the 
tonca  bean  for  a  term  of  twenty-five  3"ears  upon  the  vacant  lands  lying 
between  the  eastern  boundaries  of  the  Federal  territories  Alto  Orinoco 
and  Amazonas,  and  between  the  Orinoco  and  the  l^oundaries  of  Vene- 
zuela and  Brazil,  because  it  is  thus  established  b}-^  the  constitution,  the 
laws  of  the  Republic,  and  the  fourteenth  clause  of  the  contract  of 
December  17,  1885,  reproduced  in  that  of  April  1,  1887,  reading  as 
follows: 

-Vn}'  doubts  or  controversies  that  may  arise  in  the  execution  of  the  contract  shall  bo 
decided  by  the  proper  courts  in  the  Republic  in  confonnity  with  the  laws  thereof. 

The  sentence  passed  by  the  high  court,  as  coming  under  its  civil 
jurisdiction,  in  conformity  with  local  legislation  and  in  compliance 
with  the  solemn  agreement  entered  into  by  the  contracting  parties, 
which  is  the  supreme  law  controlling  bilateral  contracts,  can  not  give 
rise  to  diplomatic  intervention  nor  impose  upon  the  ^"enezuelan  Gov- 
ernment any  liability  growing  out  of  said  sentence,  unless  it  is  estab- 
lished hei/ond  doubt  that  there  has  existed  a  denial  of  justice  or  delays  in 
the  administration  of  justice,  contrary  to  usage  or  a  law,  or  that  a  final 
judgment  has  not  been  executed,  or  that  there  exists  an  evident  viola- 
tion of  the  treaties  or  rules  of  the  law  of  nations.  In  order  to  enter 
the  action  the  only  plea  that  it  has  been  possible  to  advance  is  that  of 
denial  of  justice,  as  regards  the  form  of  proceedings  and  the  substance 
of  the  action. 

In  regard  to  the  first  contention,  i,  e. — irregularity  in  the  form  of  the 
proceedings,  it  has  been  sufficiently  shown  that  the  grounds  advanced 
by  the  claimant  company  are  wholly  without  foundation.     In  refer- 


304  COMPANY    GENERAL    OF    THE    ORINOCO    CASE. 

ence  to  the  second  contention,  i.  e. — the  decision  on  the  substance  of  the 
action  for  rescission  of  tlie  contracts  entered  by  tlie  fiscal  de  hacicn(hi 
before  the  liifçh  Federal  court,  it  suihces  to  transcribe  the  ver}'  same 
terms  employed  by  the  author  of  the  brief  to  come  to  the  conclusion 
that  the  hiojh  Federal  court  in  adjud<;in.i!;  the  rescission  of  the  contracts 
did  so  by  virtue  of  legal  provisions  f^overning  such  conventions  as  con- 
tain reciprocal  obligations,  in  Anew  of  and  upon  investigation  of  the 
proofs  produced  by  the  claimant  in  case  the  defendant  fails  to  show 
proof  in  support  of  the  exception  taken  at  the  hearing  of  the  case. 
Maître  Poincaré  says,  page  78  of  his  brief: 

Elle  (la  Compagnie  Céndrale  de  TOrénoque)  n'a  pu  prouver  quelle  avait  remplie  ses 
obligations,  sauf  cas  de  force  majeure,  elle  n'a  pu  montrer  que  c'était  le  Gouvernement  qui 
avait  manqué  à  ses  devoirs;  elle  n'a  pu  présenter  les  très  nombreuses  et  très  intéressantes 
attestations  écrites  qu'à  défaut  d'enquête  régulièrement  ouverte  en  France,  elle  avait  réunies, 
qu'elle  était  prête  á  fournir,  que  nous  résumerons  ou  citerons  plus  loin  et  qui  ont  été  totale- 
ment ignorées  de  la  Haute  Cour.» 

Whose  fault  was  it  and  whose  the  liability  for  the  consequences  if 
the  General  Company  of  the  Orinoco  did  not  know  how  or  did  not  wish 
to  defend  its  case  and  prove  its  exceptions  when  it  had  at  its  dis- 
posal all  the  legal  means  oflered  hj  the  A  enezuelan  codes,  so  that  such 
proofs  and  testimony  would  not  be  wholly  ignored?  If  she  had  Mr. 
Fiat  as  her  representative  and  Drs.  Diego  B.  Urbaneja  and  Ramón  F. 
Feo  as  her  legal  counsel,  wh}^  did  she  not  make  use  of  her  means  of 
defense  ?  If  the  representative  or  the  counsel  did  find  any  difficulty, 
any  obstacle  having  the  color  of  denial  of  justice  or  of  delay  in  its 
administration,  why  is  it  that  they  did  not  enter  such  complaint 
before  the  same  court  or  did  not  file  a  protest  showing  such  irregular 
method  of  procedure?  Is  it  possible  that  at  the  end  of  four  years 
after  the  sentence  was  passed  such  experienced  lawyers  should  iintl 
omission  in  the  proceedings  and  denials  of  justice  which  they  did  not 
detect  during  the  hearing  of  the  case? 

On  the  other  hand,  the  Government  of  Venezuela  established  with 
sundry  proofs,  not  objected  to,  the  truth  of  its  statements,  antl  the 
high  court  of  justice,  by  means  of  personal  inspection  of  the  territory 
which  is  the  ()l)ject  of  the  controversy,  investigates  and  weighs  such 
proofs  which  are  found  sufficient  to  adjudge  by  virtue  of  its  legal 
authority  has  not  fidfiUed  the  obligations  created  by  the  contracts; 
and  in  conformity  with  article  1110  of  the  civil  code,  which  deals  with 
the  resolutory  conditions  of  contracts,  and  articles  1256  and  11 63,  does 
declare  that  there  are  great  grounds  for  an  action;  that  the  contracts 
of  May  24,  1886,  and  May  31,  1887,  made  between  the  national  Gov- 


alt  (the  General  Company  of  the  Orinoco)  has  been  unable  to  prove  that  it  had  ful- 
filled its  obligations  except  in  case  oí  force  niajciire.  It  has  not  been  al)le  to  show  that  it 
was  the  Goverimient  which  failed  to  do  its  duty.  It  could  not  jiroduce  the  inuncnse 
amount  of  most  interesting  written  evidence  which  in  the  absi'uce  of  depositions  regularly 
made  in  Franco  it  had  gathered  and  wius  ready  to  furnish,  and  which  wo  will  quote  later  or 
epitomize  further,  evideuco  which  was  totally  ujnored  by  the  high  court. 


ADDITIONAL    OPINION    OF   VENEZUELAN    COMMISSIONER.       305 

eminent,  on  the  one  part,  and  Miguel  Tejera  and  Th.  Delort  on  tlie 
other,  of  which  the  compan}''  was  the  assignee,  shoidd  be  dissolved,  and 
condemns  said  company  to  pay  the  national  Government  the  sum  of 
40,048.62  bolivars  for  damages  to  the  State,  because  of  the  company's 
failure  to  execute  the  aforesaid  contracts,  besides  the  costs  of  the 
action.  Such  judgment,  rendered  by  the  highest  court  of  the  Republic 
and  for  fourteen  years  having  had  the  weight  of  res  judicata,  can  not 
be  reviewed,  except  to  the  grave  detriment  of  the  sovereignt}'  of  the 
nation,  by  any  court  of  arbitration  unless  such  judgment  contains  an 
essential  denial  of  justice  fully  established.  The  honorable  umpire  has 
at  his  disposal  abundant  material  to  arrive  at  a  conclusion  in  regard 
to  such  denial  of  justice.  The  honorable  umpire  well  knows  what 
such  phrase  means  when  dealing  with  a  sentence  rendered  by  a  court 
having  ftill  powers  to  pass  final  judgment  on  a  matter  submitted  by 
positive  law  and  by  the  will  of  the  parties  to  investigation  and  decision. 
The  honorable  umpire  is  well  aware  that  neither  sophisms  nor  far- 
fetching  arguments  nor  yet  more  or  less  specious  pretexts  can  annul 
the  action  of  the  res  judicata  and  brand  those  who  b}^  fundamental 
laws  have  been  intrusted  with  the  highest  offices  and  powers  to  admin- 
ister justice  to  have  been  guilty  of  denial  of  justice. 

There  are  proofs — there  are  documents  and  memoranda — to  show  that 
the  company,  at  the  time  of  the  filing  of  the  suit  for  resolution  of  the 
contract,  was  in  a  state  of  bankruptcy;  that  it  was  powerless  to  con- 
tinue the  attempts  at  development  and  steam  navigation  undertaken 
four  j^ears  before  ;  the  oAvn  confession  of  the  company  to  the  effect  that 
it  had  engaged  in  a  venture  without  knowing  either  its  extent  or  its 
difficulties;  the  balance  sheet  presented  at  the  meeting  of  the  share- 
holders on  May  30,  1890,  showing  liabilities  three  times  as  large  as  the 
assets;  the  necessity  to  go  into  liquidation,  which  in  all  languages 
means  a  complete  paralyzation  of  business  operations;  the  company's 
schemes  of  becoming  first  an  English,  then  a  Belgian  association,  in 
search  of  new  capital,  the  loan  of  which  it  was  impossible  to  obtain  in 
France;  the  sending  to  Caracas  of  Mr.  Berthier,  eager  to  obtain  a  new 
contract  releasing  the  company  in  liquidation  of  the  former  contractual 
obligations,  freeing  the  company  of  the  suit  then  pending  before  the 
high  Federal  court  and  saving  it  from  the  wreck;  there  are,  in  fine,  the 
last  letters  of  Agent  Berthier,  in  which,  after  losing  all  hope  of  making 
a  new  contract  with  the  Government  of  Venezuela,  he  prepares  the 
ground  for  a  large  claim,  giving  out  as  its  main  foundation,  not  denials 
of  justice,  which  was  an  afterthought,  but  two  facts  which  had  just 
taken  place  on  the  Orinoco  River  and  which  in  time  would  give  them 
considerable  grounds.  The  first  was  that  the  governor  of  the  territory 
placed  out  of  commission  the  steamer  Meta  by  the  dismounting  of 
certain  valves  to  prevent  their  capture  by  the  revolutionists;  and  the 
second  event  was  an  armed  attack  against  the  sm'^11  steamer,  icJiich  was 
on  the  point  ofheing  captured.  All  this  will  be  examined  by  the  honor- 
S.  Doc.  533,  59-1 20 


306  COMPANY    GENERAL    OF    THE    ORINOCO    CASE. 

able  umpire,  who  is  to  decide  whether  the  sentence  of  the  high  Federal 
court  of  Venezuela  ordering  the  resolution  of  the  contracts  and  con- 
demning the  companj"  to  the  payment  of  an  indemnity,  ver^^  small, 
however,  to  the  Government  of  Veno/Aiola,  has  no  value,  as  claimed  by 
the  liquidators  of  the  company,  because  it  involves  a  denial  of  justice. 

In  connection  ^^^th  said  sentence  it  only  remains  for  me  to  analyze 
the  facts  which  constitute  the  first  of  the  causes  of  the  good  grounds 
for  the  indemnity  claim  before  mentioned,  which  the  author  of  the 
brief  bases  upon  the  dissimulations  which  altered  the  substance  of  the 
contract  and  permitted  the  Government  of  Venezuela  to  obtain  the 
consent  of  the  General  Company  of  the  Orinoco, 

Maître  Poincaré  devotes  this  section  to  the  boundary  question 
between  Venezuela  and  Colombia,  which  the  King  of  Spain  decided,  as 
lunpire,  by  the  award  published  in  the  Gaceta  de  Madrid,  March  17, 
1891.  Tliis  event  has  come  to  be  the  main  stronghold  of  the  General 
Company  of  the  Orinoco,  which  has  gone  so  far  as  to  charge  Venezuela 
with  fraud  in  the  contracts  made  with  ^Miguel  Tejera  and  Th.  Delort, 
which  were  subsequently  conveyed  ])y  them  to  the  company.  In  my 
former  brief  I  dealt  with  these  singular  pretensions,  and  I  believe  I 
have  fully  confuted  all  the  assumptions  and  charges  that  Mr.  Delort 
in  the  first  place,  and  then  the  li(|uidators  of  the  company,  and  finally 
Maître  Poincaré,  have  pretended  and  still  pretend  to  maintain  against 
the  different  administrations  of  Venezuela,  from  Guzman  Blanco  to 
Andueza  Palacio  alleging  that  the  company  was  kept  in  ignorance  of 
the  question  with  Colombia  involving  a  portion  of  the  vast  expanse  of 
territory  subject  to  the  concession. 

From  the  extensive  discussion  of  the  subject  by  Maître  Poincaré  I 
will  note  the  following  points: 

The  Venezuelan  Government  says  now 
(It  is  not  the  Venezuelan  Government  that  says  it,  but  the  commis- 
sioner for  Venezuela  in  his  opinion,  page  31 — Opinion  of  the  Vene- 
zuelan commissioner  and  supported  by  indisputable  proof) — 

the  good  faith  in  which  Venezuela  was  possessing  a  certain  belt  of  her  territory,  which  was 
afterwards  adjudicated  by  the  umpire  to  the  Republic  of  Colombia,  relieves  its  Govern- 
ment of  all  responsibility  in  the  concession  under  discussion,  the  object  of  which  never  was  a 
definitive  conveyance  but  the  development  of  natural  products  in  places  wliore  Venezuelan 
interests  had  already  been  created  and  the  authorities  of  the  country  discharged  their  respec- 
tive duties.  • 

The  following  is  from  Maître  Poincaré: 

Entendons  nous.  11  est  possible  que  vis-à-vis  de  la  Colombie  le  VéntV.ucla  ait  i^té  posses- 
seur de  bonne  foi, en  co  sens  qu'il  espérait  obtenir  gain  de  cause  devant  rarl)itre.  Nous 
croyons  volontiers  que  c'est  là  la  raison  du  silence  gardé  par  M.  lo  Docteur  l'rl)ancja,  j^ar  .M. 
Tejera  et  par  le  Général  Guzman  Blanco.» 

oliCt  us  come  to  an  understanding.  It  may  bo  possible,  that  as  far  as  Colombia  is  con- 
cerned, Venezuela  has  been  a  honafuh  pos.sessor  in  the  sense,  that  Venezuela  expected  to 
gain  her  point  before  the  umpire.  We  are  willing  to  believe  that  such  is  the  reason 
of  the  silence  of  Doctor  Urbaneja,  Mr.  Tejera,  and  General  Guzman  Blanco. 


ADDITIONAL    OPINION    OF    VENEZUELAN    COMMISSIONER.       307 

It  is  not  only  before  Colombia  that  \'enezuela  has  been  a  bona  fide 
possessor,  nor  that  it  has  been  such  because  she  expected  to  gain  the 
point  l)ofore  the  umpire.  This  last  circunistanco  we  do  not  find 
adoptetl  in  an}^  positive  legislation  nor  by  any  connnentator  on  civil 
law  as  a  determining  condition  of  the  possessor  in  good  faith  against 
the  opposing  party. 

Let  us  see  the  award  of  the  IVng  of  Spain  as  the  arbiter  juris: 

Whereas  the  United  States  of  Venezuela  are  the  possessors  in  good  faith  of  territories  lying 
west  of  the  Orinoco,  Casiqviiaro,  and  tlie  Rio  Negro  rivers,  forming  the  boundaries  on  tliis 
side  as  assigned  bytlie  aforesaid  "real  e(5diila"  of  17G8 to tlie /province fj/'í/uíafta,andwliereas 
there  exist  m  said  lands  numerous  Venezuelan  properties  developed  in  the  loyal  hela f  that  they 
lie  in  the  domain  of  the  United  States  of  Venezuela,  *  *  *  it  is  expressly  assigned  to 
Venezuela  the  right  of  way  over  the  aforesaid  road,  it  being  understood  that  such  easement 
shall  cease  twenty-five  years  after  tlie  publication  of  this  award. 

How  does  civil  law  define  the  bona  fide  possession  ?  The  possessor  in 
good  faith  is  he  who  possesses  as  an  owner  1)}^  virtue  of  a  just  title — 
that  is  to  say,  a  title  capable  of  conveying  ownership  even  if  the  title 
is  vitiated,  provided  such  vitiation  is  unknown  to  the  possessor.  As  a 
complement  to  such  definition,  civil  law  has  established  the  following 
principles,  wliich  are  a  part  of  the  substantive  legislation  of  both 
France  and  Venezuela,  to  wit: 

Good  faith  is  always  presumed  and  whoever  alleges  bad  faith  must  prove  that  such  exists. 
It  suffices  that  good  faith  existed  at  the  time  of  the  acquisition. 

The  de  facto  possession,  when  it  is  continued,  uninterrupted,  peace- 
ful, public,  unequivocal,  and  with  the  purpose  to  hold  the  thing  as 
one's  own,  is  also  established  by  both  civil  and  natural  laws  as  a  title  of 
possession  capable  of  conveyance,  thirty  years  being  sufficient 
between  private  individuals  even  in  cases  where  there  is  no  title.  If 
Venezuela,  who  possessed  in  good  faith  the  territories  west  of  the 
Orinoco,  Casiquiare,  and  Rio  Negro,  and  there  developed  numerous 
¡yroperties  in  the  loyal  belief  that  they  lie  within  its  domain,  as  formally 
alleged  by  the  award  of  the  King  of  Spain,  at  least  since  the  date  of  the 
''real  cédula"  of  May  5,  1768,  establishing  as  the  boundaries  of  the 
province  of  Guiana  the  rivers  Orinoco,  Casiquiare,  and  Kio  Xegro, 
could  not  gain  the  point,  notwithstanding  the  fact  of  interrupted 
possession  in  good  faith  for  over  one  hundred  years  of  the  disputed 
territories  Venezuela  has  at  least  remained  in  the  enjo3nnent  coram 
gentihus  et  nationibus  by  the  just  award  of  the  umpire  the  title  of  bona 
fide  possessor  of  said  territory,  because  she  had  established  therein 
valuable  properties  and  developed  them  in  the  loyal  belief  that  she 
exercised  over  them  immanent  sovereignity. 

After  the  preceding  demonstration  of  facts,  based  upon  indisputable 
documents,  what  is  the  weight  of  the  following  conclusion  of  Maître 
Poincaré  ? 

Venezuela  could  not  guarantee  the  company  the  peaceful  ixjsse.ssion  of  a  territory  under 
dispute.  Thus  she  granted  a  thing  whicli  was  tainted  with  a  concealed  vice,  since  it  was 
doubtful  whether  it  belonged  to  Venezuela,  and  she  knew  it. 


308       COMPANY  GENERAL  OF  THE  ORINOCO  CASE. 

By  all  those  reasons  which  belong  both  to  the  realm  of  natural  as  well  as  jMsitive  law,  Vene- 
zuela is  liable  to  the  General  Company  of  the  Orinoco.  The  latter  must  obtain  the  annul- 
ment of  the  contract  of  concession  l)ecause  of  sul)stantial  errors  and  vice  in  the  conf;ent,  and 
therefore  is  entitled  to  an  indemnity  for  all  the  damages  caused  by  such  nullit}'. 

Let  US  comparo  this  conclusion  with  tlie  statement  made  by  Mr.  Th. 
Delort,  the  company's  representative,  on  September  20,  1SS8,  in  a 
letter  addressed  to  the  minister  of  fomento  of  Venezuela,  who  had 
asked  him  certain  explanations,  transcribing  the  following  communi- 
cation of  the  department  of  foreign  relations  of  Venezuela: 

Sik:  The  envoy  extraordinary  of  the  Republic  of  Colombia  has  lodged  a  complaint  against 
the  publication  of  a  geographical  chart  and  a  report  of  the  company  of  the  upper  Orinoco 
and  Amazonas  in  wiiich,  while  describing  tlic  boundaries  oí  such  possessions,  a  vast  expanse 
of  the  territory  in  dispute  between  the  two  countries  has  been  included  as  having  l)een  granted. 
In  consequence  thereof  and  in  view  of  the  necessity  of  examining  the  chart  and  report  in 
reference,  I  beg  to  request  that  you  send  them  to  this  office,  if  you  have  them  in  your  depart- 
ment, and  if  not,  I  beg  that  you  request  from  the  representative  of  the  company  a  report  on 
whatever  has  been  done  in  this  matter,  as  well  as  the  chart  and  report  in  question. 

(Signed)  Ysti'riz. 

The  statement  of  Mr.  Delort  in  answer  to  said  note  and  in  reference 
to  the  concealed  vice  and  error  in  the  consent  to  which  M.  Poincaré 
refers,  is  as  follows: 

The  company  is  not  vjnorant  of  the  fact  that  the  frontier  between  Venezuela  and  Colombia 
is  in  dispute,  and  submitted  to  the  decision  of  the  Government  of  Spain.  In  consequence 
the  company  has  no  claim  whatever  to  make  in  this  respect  and  as  the  concession  oriyinatrd 
from  the  Venezuelan  Government  it  {the  company)  is  icell  aware  that  it  must  abide  by  the 
définitive  boundaries  that  may  be  fixed  for  this  Republic.  Up  to  the  present  the  com- 
pany has  not  extended  its  operations  but  to  such  points  as  are  occupied  by  Venezuelan 
authorities;  and  the  offices,  warehouses,  and  dependencies  are  in  Atures,  Maipures,  San  Fer- 
nando, San  Carlos,  and  the  Brazilian  frontier  and  the  steamers  have  only  navigated  on  the 
Orinoco,  Casiquiare,  and  Guainia. 

(Signed)  Tn.  Delort. 

Verla  volant,  scripta  manent. 

Maître  Poincaré  claims  that  that  evidently  important  portion  of 
the  letter,  as  he  states,  was  not  spontaneously  introduced  in  Mr. 
Delort's  answer.  So  we  have  now  that  it  is  not  the  alleged  ignorance 
in  which  the  company  was  kept  of  the  existence  of  the  question 
between  Colombia  and  Venezuela,  as  Mr.  Delort  declares  that  the 
company  was  not  ignorant  of  such  fact;  it  is  not  the  concealed  vice 
in  the  substance  of  the  contract,  since  Mr.  Delort  himself  states  that 
the  company  has  no  claims  to  make  in  this  regard,  and  finally,  it  is  not 
error  in  the  consent,  because  Mr.  Delort  avers  that  the  company  is 
well  aware  that  it  must  accept  the  frontier  which  shall  be  defi- 
nitively awarded  to  the  Republic.  The  lack  of  spontaneity  of  such 
statements  can  not  rob  them  of  their  intrinsic  value.  Is  it  perchance 
spontaneously  that  the  man  caught  in  the  very  act  of  putting  his 
hand  into  some  one  else's  trunk — as  in  the  case  of  the  company,  which 
in  the  map  and   report  offered  to  the  stockhoklers,  when  about  to 


ADDITIONAL   OPINION   OF   VENEZUELAN    COMMISSIONER.       309 

form  the  company,  shows  as  her  own  definitive  grant  of  land  defining 
its  boundaries  a  territory  disputed  by  Venezuela  and  Colombia — con- 
fosses,  when  compelled  to  apologize,  that  appearances  may  be  against 
liim,  but  that  he  sim])ly  wanted  to  find  out  whether  the  trunk  was 
empty?  Whether  spontaneous  or  not,  the  statements  of  M.  Delort, 
in  reference  to  his  knowledge  of  the  arbitration  proceedings  the  igno- 
rance of  which  was  alleged  and  in  regard  to  the  fact  that  they  had  to 
abide  by  the  consequences  of  the  award  and  had  710  claim  on  this 
score,  are  decisive  and  cut  short  the  handy  boundary  question  between 
Venezuela  and  Colombia,  on  which  the  General  Company  of  the  Ori- 
noco finds  the  grounds  to  pretend  a  large  indemnity  from  the  Vene- 
zuelan Government. 

As  a  final  statement  on  this  point  and  not  to  leave  unanswered  a 
question  of  law  to  which  M.  Poincaré  refers  in  his  brief,  that  of  the 
indemnification  the  vendor  owes  the  vendee,  the  concessions  being 
comparable  from  the  standpoint  of  the  obligations  of  the  assignor 
to  the  sale  of  incorporeal  rights,  I  will  only  say,  admitting  the  com- 
mon principle  that  the  assignor  is  liable  to  the  assignee,  in  assign- 
ments for  a  consideration  for  any  indemnification  growing  out  of 
concealed  defects  or  faults  in  the  thing  assigned  and  for  the  peaceful 
possession  of  the  thing  sold  or  conveyed,  which  is  a  princiriC  estab- 
lished in  the  Venezuelan  Civil  Code,  that  in  the  concession.'  made  by 
the  Government  of  Venezuela  to  Messrs.  Miguel  Tejera  and  Th. 
Delort,  there  are  no  concealed  defects  or  vitiations,  because,  as  such 
grants  only  dealt  with  the  exploitation  of  mines  and  development 
of  the  natural  products  which  laj^  within  a  certain  belt  of  land,  such 
operations  have  not  offered  nor  could  they  offer  any  concealed  defects 
or  vice  for  which  the  grantor  is  responsible.  And  as  regards  the 
peaceful  possession  of  the  grant  made  with  reference  to  the  boundary 
question  with  Colombia,  the  grants  do  not  fix  any  particular  bound- 
aries, but  simply  mention  the  territories  of  Upper  (Alto)  Orinoco 
and  Amazonas  in  the  first  contract  and  the  vacant  lands  lying  between 
the  eastern  boundaries  of  the  Federal  territories  Alto  Ormoco,  and 
Amazonas,  and  British  Guiana,  and  between  the  Orinoco  and  the 
limits  of  Venezuela  and  Brazil. 

The  good  faith  declared  in  favor  of  Venezuela  by  the  umpire,  who 
decided  the  boundary  dispute,  in  regard  to  that  portion  of  the  terri- 
tory^ Venezuela  was  occupying  with  animus  domini  and  the  award 
fixing  the  boundary  between  both  countries,  establish  as  regards  the 
extent  of  territory  the  development  of  which  was  the  subject  of  the 
contracts,  the  condition  juris  between  Venezuela  and  the  grantees 
in  the  matter  of  the  boundaries  of  the  territories  granted  to  be  devel- 
oped, which  are  only  designated  by  their  known  names,  without 
specifying  their  extent  or  their  precise  boundaries  in  the  contracts 
under  review. 


310  COMPANY    GENERAL   OF   THE    ORINOCO   CASE. 

On  the  other  hand,  the  question  of  indemnification  Hes  between 
the  grantor  or  assignor  and  the  grantee  or  assignee,  and  in  the  (k'vel- 
opment  contracts  under  discussion  the  assignors  to  tlie  General  Com- 
pany of  the  Orinoco  were  Messrs.  Miguel  Tejera  (a  Venezuelan)  and 
Th.  Delort,  who  in  turn  had  obtained  such  contracts  from  tlie  Vene- 
zuelan Government.  All  questions  relating  to  the  concealed  defects 
of  the  thing  which  was  the  subject  of  the  contract  or  the  lack  of  title 
of  the  vendor  or  assignor  which  may  invalidate  it  grow  out  of  the 
contract  itself  and  at  the  very  moment  when  such  contract  was 
made. 

The  Government  of  Venezuela  never  discussed  with  the  General 
Company  of  the  Orinoco  the  question  of  the  development  of  the  ter- 
ritories of  Alto  Orinoco  and  Amazonas.  The  stipulations  to  that 
effect  in  the  respective  contracts  were  agreed  upon  ])y  the  Venezuelan 
Government  and  Messrs.  Tejera  and  Delort,  and  it  is  from  said  sti])U- 
lations  that  the  question  dealing  with  the  responsibility  of  the  con- 
tracting parties  may  originate.  The  General  Company  of  the  Orinoco 
could  only  claim  from  Messrs.  Tejera  and  Delort,  the  assignors  who 
made  the  transfer  in  favor  of  the  s}Tidicate,  for  a  40  and  20  per  cent, 
respectively,  of  the  amounts  that  might  be  paid  out  as  dividends. 

It  is  also  wortlw  of  notice  that  notwithstanding  the  knowledge  the 
General  Company  of  the  Orinoco  had  of  the  boundary  question  before 
September  28,  1888,  as  evidenced  by  the  above-mentioned  letter 
from  the  company's  representative,  Mr.  Delort,  the  comi)an3'  did  not 
enter  before  the  high  Federal  court  in  the  proceedings  had  two  years 
later  for  the  rescission  of  the  contracts  any  exceptions  whatever  grow- 
ing out  of  the  boundary  question,  nor  advanced  any  claim  against 
the  grantors  or  assignors  for  a  guarantee  or  liability.  The  case  ended 
with  the  final  judgment  awarding  the  rescission  of  the  contracts  on 
October  14,  1891 — that  is,  seven  montlis  after  the  award  of  the  King 
of  Spain — and  such  declaration  of  rescission  for  failure  of  the  assignee 
company  to  carry  out  the  contracted  obligations  destroys  or  invali- 
dates any  importance  the  liability  question  ma}'  claim  as  affecting 
the  Government  of  Venezuela. 

Section  II,  Chapter  II,  of  Maître  Poincaré's  brief  deals  with  the  fail- 
ure on  the  part  of  Venezuela  to  execute  her  contractual  obligations,  a 
question  which  was  examined  in  the  action  before  the  high  Federal 
court  of  Venezuela,  as  it  was  one  of  the  excej)tions  filed  by  Mr.  Fiat,  the 
company's  representative,  who  answered  the  action  for  rescission. 
The  company  could  establish  nothing  in  favor  of  its  claims,  as  shown 
by  the  minutes  of  the  proceedings,  and,  (piite  to  the  contrary,  the  sen- 
tence passed  adjudged  that  it  appeared  from  the  proceedings  that  the 
Government  of  Venezuela  had  fulfilled  on  its  side  all  the  obligations 
devolving  upon  thcGovermnent  by  virtue  of  the  contracts  in  reference. 
The  charges  the  counsel  for  the  company  accumulates  in  his  brief 


ADDITIONAL   OPINION    OF   VENEZUELAN   COMMISSIONER.       311 

against  the  Venezuelan  Government  are  in  their  largo  majority  foreign 
to  the  obligations  entered  upon  by  the  Government  as  regards  the 
grantees  or  concessionaries  to  allow  them  to  carry  out  the  devolo])- 
ment  of  the  natural  products  and  the  mines  lying  within  the  territories 
in  the  contract  mentioned  by  their  names.  Such  exploitation  and 
development  operations  were  carried  on  by  the  assignee  company,  as 
far  as  their  limited  resources  would  allow,  as  shown  by  the  documents 
submitted,  and,  if  such  operations  were  not  favorable  to  the  ends  of  the 
company,  it  was  not  the  fault  of  the  Venezuelan  Government,  but  of 
the  company,  which  accepted  the  execution  of  the  obligations  and 
agreements  contained  in  the  contracts,  which  absorbed,  nobody  knows 
how,  considerable  sums  for  administration  and  installation  expenses, 
and  expensive  and  ineilicient  attempts  to  establish  navigation  on  the 
upper  Orinoco.  The  colossal  scheme,  as  confessed  in  several  docu- 
ments by  the  representatives  of  the  company,  was  undertaken  without 
knowledge  of  its  immense  diilicultics  nor  of  the  territor}^  and  river 
network  which  were  to  be  the  object  of  the  improvements  to  be  made 
in  compensation  for  the  development  of  the  natural  products  and 
the  monopoly  of  steam  navigation  on  the  river  Orinoco  and  some 
of  its  affluents.  The  representatives  of  the  company  have  tried  to 
cast  the  blame  for  such  want  of  knowledge  and  for  the  castles  in  the 
air  built  by  the  promoters  of  the  company,  Messrs.  Miguel  Tejera  and 
Guzman  Blanco,  because  the}^  did  not  show  them  in  due" time  all  the 
diihculties  to  be  met  later  on  in  the  execution  of  the  contracted  obli- 
gations. Such  charges,  however,  do  not  affect  in  the  least  the  respon- 
sibility of  the  Venezuelan  Government,  which  had  no  dealings  with  the 
General  Companj^  of  the  Orinoco,  nor  was  bound  to  make  for  the  com- 
pau}^  the  previous  survey  necessary  to  find  out  exactly  which  were  the 
obligations  contracted,  or  whether  it  was  possible  or  not  with  the  lim- 
ited capital  the  company  had  to  undertake  and  carry  to  a  successful 
issue  the  vast  plan  of  improvements  which  represented  for  the  com- 
pany, as  compensation,  the  right  to  develop  the  natural  products,  and 
to  enjoy  the  monopoly  of  steam  navigation  through  the  network  of  the 
Orinoco  rivers,  when  such  was  established  in  conformity  with  the  con- 
tract. To  such  considerations  we  must  add  the  fact  that  Mr.  Miguel 
Tejera  and  M.  Th.  Delort  were  the  promoters  of  the  syndicate  of  the 
General  Company  of  the  Orinoco,  setting  aside  for  themselves  40  and 
20  per  cent,  respectively,  on  the  profits  of  the  company  as  a  compensa- 
tion for  their  concessions. 

Jjet  us  see  how  Maître  Poincaré  describes  the  combination: 

The  beneficiary  in  the  contract  of  December  17,  1885,  Mr.  Miguel  Tejera,  had  close  rela- 
tions with  General  Guzman  Blanco.  He  had  been  connected  with  the  general  in  several 
important  business  ti  insactions,  principally  in  the  Carenero  and  the  coinage  deals,  and 
without  wishing  to  offend  the  memory  of  these  gentlemen  (both  having  died),  it  might  be 
added  that  lie  (Tejera)  passed  as  the  figurehead  (prête-nom)  of  General  Guzman  Blanco. 

He  could  not  under  circumstances  take  personal  charge  of  the  Alto  Orinoco  scheme,  so  he 


812  COMPANY    GENERAL    OF   THE   ORINOCO    CASE. 

immediately  formed  the  means,  if  not  to  convej'  it  to  another  grantee,  at  least  to  trust  it 
keeping  to  himself  certain  advantages  in  the  hands  of  a  French  syndicate. 

It  was  tlius  that  the  s\Tidicate  of  the  Alto  Orinoco  was  established  in  Paris  in  Septem- 
ber, 1886. 

Su'Ji  candid  confession  plainly  reveals  the  origin  of  the  General 
Company  of  the  Orinoco.  It  was  the  outcome  of  tacit  understandings 
between  the  two  grantors  of  the  contract  of  December  17,  1885, 
wherein  the  grantee  was  the  figurehead  of  the  grantor,  according  to 
the  statement  of  the  representative  and  counsel  for  the  company. 
Such  crooked  contract  concealing  material  frauds,  according  to  the 
representative  and  counsel  already  mentioned,  was  accepted  bj"  a  finan- 
cial organization,  abandoning  to  the  beneficiar}'  40  per  cent  of  the 
profits.  It  is  not  necessary  to  be  a  financier  to  aííirm  that  such  organ- 
ization was  doomed  to  death  from  its  inception,  and  that  under  the 
conditions  of  the  deal  and  the  contract  the  child  of  the  combination, 
the  General  Company  of  the  Orinoco,  created  one  year  and  a  half  after- 
wards, or  on  March  10, 1888,  could  not  possibly  live.  Legitimate  busi- 
ness transactions  can  not  prosper,  unless  in  that  pure  atmosphere  of 
credit  and  trust,  which  is  onl}^  found  in  the  road  labor  and  capital 
follow,  leading  to  wise  management  and  legitimate  though  moderate 
gain.  If  Messrs.  Tejera  and  Delort  had  appropriated  to  themselves, 
according  to  the  statutes  of  the  syndicate, *60  per  cent  of  the  profits, 
simply  because  they  had  transferred  to  the  s}Tidicate  two  written  con- 
tracts without  any  positive  value,  could  it  be  expected  that  Frencii 
capitalists,  who  are  as  conservative  as  clever,  would  contribute  to 
make  up  the  business  capital  indispensable  to  the  development  of  the 
scheme  within  its  proper  proportions  ?  Undoubtedly  it  could  not  be 
so,  and  that  is  wh}'  the  company,  which  could  scarcel}^  get  together  a 
capital  of  1,500,000  francs,  when  it  was  established  in  March,  1888, 
had  liabilities  exceeding  800,000  francs,  made  up  of  a  debt  to  the 
coinage  association  of  491,486  francs  and  another  debt  due  M.  Chau- 
velot,  a  member  of  the  S3^ndicate,  of  300,000  francs,  and  for  which 
600,000  francs  in  unassessable  stock  were  delivered  to  him.  Under 
such  circumstances  the  capital  on  hand  to  continue  the  colossal  scheme 
was  reduced  when  the  company  began  operations  to  the  amount 
of  400,000  francs.  Two  years  later  the  company  failed  with  liabilities 
amounting  to  2,741,084.27  francs,  its  credit  heing  totally  exhausted 
(see  report  of  li([uidation),  so  that  it  was  forcibly  driven  to  go  into  Vu\ui- 
dation  on  May  30,  1890.  Such,  and  no  other,  could  be  the  end  of  the 
company  when  the  beginning  was  tainted. 

I  beg  to  submit  to  the  honorable  um])ire  with  this  additional  opinion 
and  an  annexed  portion  of  it  an  ailidavit  dul}^  attesteil  ct)ntaining  the 
deposition  made  in  Paris  on  June  6,  1903,  by  M.  Joseph  Ilippolyte 
Andrau-Maural,  a  former  re])res(»ntative  and  attorney  in  Vcne/iu'la 
for.  the  General  Company  of  the  Orinoco,  in  liquidation  from  the  latter 
part  of  1890  until  April,  1893. 


ADDITIONAL    OPINION    OF    VENEZUELAN    COMMISSIONER.       31 3 

Such  affidavit  contains,  in  confirmation  of  all  the  foregoing,  the  cir- 
cumstances and  the  facts  that  have  led  the  General  Company  of  the 
Orinoco  to  its  complete  disorganization  and  the  impossibility  to  con- 
tinue to  exist;  and  as  a  résumé  of  the  causes  which  produced  such 
results,  the  following  may  be  transcribed  : 

The  scheme  was  neither  well  investigated  nor  seriously  propared,  and  was  put  into  execu- 
tion in  the  worst  possible  manner.  The  scheme  fell  fatally  under  the  weight  of  universal 
reprobation,  a  bad  financial  position  from  the  start,  through  reprehensible  dealings  and 
detestable  management. 

This  affidavit  is  accompanied  b}^  several  letters  addressed  to  M. 
Andrau-Maural  by  M.  Roux,  lic[ui<lator  of  the  company,  and  M. 
Delort,  its  general  representative  in  \'enezuela,  relating  to  the  liquida- 
tion operations  of  the  pending  transactions  in  the  Orinoco  region,  and 
instructions  to  open  with  the  Government  of  Venezuela  negotiations 
for  an  indenmification.  M.  Delort,  in  his  letter  of  November  25, 
1891,  states  (that  is,  one  month  after  the  sentence  of  the  liigh  court  had 
been  passed  adjudging  the  rescission  of  the  contracts  and  condemning 
the  company  to  the  pa3'ment  of  a  certain  amount)  in  part,  as  follows: 

Third.  The  sentence  of  the  high  court  has  c.ondemned  the  company  to  the  payment  of  the 
sum  of  40,048.62  bolivars,  which  constitutes  a  new  credit  to  he  met  by  the  liquidation. 

Will  the  Government  collect  such  sum?  In  such  ease  it  is  necessary  to  answer  imme- 
diately that  the  liquidation  belongs  in  the  first  place  to  the  creditors  recognized  before  the 
sentence  was  parsed,  and  thereupon  to  claim  from  the  Government  the  amounts  due  to  the 
company  by  the  Departments  of  War  and  Navy.  (See  Planas's  letters  in  the  documents 
delivered  to  the  legation  and  Richard's  letters  on  the  requisitions  (.seizures)  of  the  Libertad, 
a  small  steamer,  December,  1888,  and  January,  1889.  A  first  seizure  of  the  Libertad  took 
place  in  November,  1888,  to  carry  troops  from  Ciudad  Bolívar  to  Guayana  Vieja.) 

It  is  more  than  probable  that,  if  the  Government  does  not  make  a  claim  before  the  diplo- 
matic reclamation  is  entered,  it  will  do  all  that  is  possible  to  enter  such  claim  afterwards.  It 
is,  then,  an  advantage  not  to  execute  any  liquidation  operations  until  the  moment  the  claim  is 
filed  so  as  not  to  put  the  Government  on  its  guard,  as  it  may  then  pretend,  because  of  its  credit 
either  to  follow  or  else  to  inspect  the  liquidation  operations. 

Then  follows  a  description  of  the  assets  of  the  liquidation  in  Vene- 
zuela, consisting,  as  stated,  of  the  following: 

1.  Floating  property.  5.  Furniture,  writing  materials,  etc. 

2.  Property  in  the  warehouses.  6.  Animals,  carts,  wagons,  etc. 

3.  All  kinds  of  merchandi.so  in  stock.  "    7.  The  cattle  ranch. 

4.  Real  property.  8.  Bills  for  collection. 

The  same  letter,  ftirther  on,  states: 

It  is  very  difficult,  almost  impossible,  to  issue  a  priori  instructions;  it  is  necessary  to  follow 
the  events  and  to  know  how  to  get  the  best  out  of  them.  It  suffices  to  establish  on  the  one 
hand  the  basis  of  the  compromise,  in  case  .such  may  be  agreed  upon,  and  on  the  other  hand 
the  direction  matters  should  take,  in  ca.se  the  Venezuelan  Government  should  be  obstinate 
and  not  accept  a  friendly  .settlement. 

I.  In  ca.se  of  compromise: 

In  our  position  before  the  French  legation  we  can  not  undertake  to  do  anjthing  without 
its  consent  from  the  moment  the  diplomatic  claim  has  been  entered. 


814  COMPANY    GENTÎRAL    OF    THE    ORINOCO    CASE. 

(Siicli  claim  was  nevor  nirectly  entered.  It  is  now  tliat  it  lias  boon 
entered  ])ef<)ie  the  mixed  commission,  l)iit  not  by  the  French  Govern- 
ment directly.) 

Tlie  letter  of  instructions  ñirther  saj^s: 

It  seems  to  nic  clear  that  tlie  Government  will  do  notliing  and  will  hear  nothing  before 
such  claim  has  been  presented,  that  is,  delivered. 

Only  in  that  case  the  Government  would  perhaps  like  to  enter  into  a  compromise.  In 
that  case,  with  whom  sliall  the  Government  enter  negotiations? 

Witli  the  Frendi  legation  it  would  ])c  difficult  (for  tlie  Government)  to  enter  into  a  scheme 
of  underhand  negotiations  {tripotages)  and  clandestine  commissions  which  are  (he  basis  of  all 
transactions  and  the  reason  of  all  dealimjs.  This  is  whj'  direct  negotiations  with  the  legation 
may  very  probably  fail.  But  the  men  in  power  are  too  sluewd  to  make  a  mistake  and  they 
will  probably  try  to  negotiate  directly  or  indirectly  by  any  means  with  the  representative  of 
the  company'.  In  this  case  you  must  keep  the  legation,  which  will  certainly  not  interfere, 
informed  of  all  the  negotiations.  \ 

To  give  the  honorable  umpire  an  idea  of  the  methods  employed  to 
get  a  heavy  indemnity,  the  foregoing  paragraphs  are  quite  sufficient. 

As  a  further  complement  to  this  brief,  I  beg  to  submit  another  aili- 
davit  of  the  same  gentleman,  M.  Andrau-Maural,  stating  which  was  tlie 
property  the  General  Company  of  the  Orinoco  in  liquidation  was  pos- 
sessed of  in  the  Orinoco  region  in  1891,  "when  said  Andrau-Maural  was 
appointed  as  its  representative.  After  that  date  two  3'ears  elapsed  in 
the  condition  expressed  in  the  testimony  bearing  number  3,  to  which 
I  have  referred  in  this  writing,  as  a])and()ned,  left  in  the  open,  and 
exposed  to  the  destructive  action  of  the  climate  and  the  elements  in 
such  remote  country.  I  conscientiously  took  into  consideration  the 
deterioration  and  natural  loss  suffered  b}"  the  property  and  for  Avhat- 
ever  the  Government  of  Venezuela  might  be  responsible  on  account  of 
the  established  seizure  of  a  small  portion  of  the  property.  I  found 
the  positive  value  of  such  to  be  sufficient!}^  compensated  with  the  sum 
of  40,448.62  bolivars,  wdiich  the  company  in  liciuidation  should  have 
paid  for  damages  according  to  the  sentence  of  the  high  Federal  court, 
besides  costs  of  the  action  which  the  company  was  also  condemned 
to  pay. 

For  the  reasons  stated  in  my  former  brief  and  for  the  reasons  I  now 
state  I  maintain  my  opinion  that  the  claim  entered  against  the  Gov- 
ernment of  Venezuela  is  totally  unfounded  and  must  be  rejected. 

NoRTiiFiELD,  Vt.,  February  9,  1905. 


ADDITIONAL  OPINION  OF  THE  FRENCH  COMMISSIONER. 

After  having  read  the  additional  memoir  of  my  honorable  colleague 
I  can  only  maintain  the  conclusions  of  the  j)rior  memoir.  Faithful  to 
the  rule  of  conduct  which  I  have  traced  for  myself  to  remain  within  the 
field  of  impartiality  which  is  suitai)le  to  an  "arbitrator"  (for  that  is  the 
title  wiiicli  the  protocol  gives  me)  I  shall  not  follow  Doctor  Paúl  in  the 


ADDITIONAL    OPINION    OP    FRENCH    COMMISSIONER.  315 

discussion  which  ho  engages  with  M.  Poincare,  advocate  of  the  ])hiin- 
tiil"  party.  Besides,  tliis  woidd  he  useless,  the  umpire  having  in  luuid 
the  two  briefs,  and  l)eing  able  as  well  as  myself  to  form  an  opinion 
after  having  read  them.  I  shall  content  myself  then  with  present- 
ing to  the  Hon.  Mr.  Phunley  a  few  observations  which  are  suggested 
to  me  by  this  additional  memoir  upon  some  points,  foreign,  however, 
in  their  very  foundation,  to  the  matter,  but  upon  the  subject  of  wliich  I 
diíTer  absolutely  from  the  opinion  of  my  honorable  colleague.  In  the 
first  place  it  is  a  ((uestion  of  the  manner  in  which  wc  have  understood, 
my  colleague  and  myself,  the  rôle  of  "arbitrators"  which  has  been 
intrusted  to  us  by  our  respective  Governments.  I  have  not  at  all 
wished  to  censun?  Doctor  Paúl  about  the  manner  in  which  he  has  under- 
stood his  duties;  he  had;  according  to  the  protocol,  the  entire  freedom 
to  understand  them  as  he  has  done.  I  have  only  wished  to  state  to  the 
umpire  that  I  was  not  placed  upon  the  same  ground.  I  have  insisted 
upon  remaining  an  "arbitrator"  and  not  to  become  the  advocate 
of  one  of  the  parties;  I  have  pronounced  myself  conscientiously  with 
all  impartiality,  without  being  afraid  to  reject  the  pretensions  which  I 
found  without  foundation  or  exaggerated.  It  is  because  I  have  fixed 
for  myself  this  line  of  conduct  that  I  have  not  been  able  to  give  to  my 
honorable  colleague  as  he  re([uests  of  me  the  "arguments"  on  which  I 
base  my  ideas.  An  arbitral  award,  like  an  ordinary  judgment,  ought 
not  and  can  not  rest  itself  upon  "arguments."  The  arbitrator,  like 
the  judge,  ought  only  to  give  the  reasons  wliich  have  convinced  liim 
and  led  to  his  decision,  but  in  tliis  particular  case  I  have  stated  the 
reasons  for  my  decision  since  I  have  said  :  °' 

^In  failing  in  the  obligations  which  it  had  assumed,  iii  deceiving  the  company  by  its 
dissimulation  which  changed  the  substance  of  its  agn  ements,  and  in  interfering  with  the 
management  of  the  concession  by  its  vexations  and  abuses  of  power,  the  Venezuelan  State 
has  brought  about  the  ruin  of  the  company. 

I  did  not  think  I  had  the  power  to  say  more.  I  have  thought 
that  in  explaining  thus  my  position  I  gave  to  my  decisions  an  authority 
which  they  woukl  not  have  had  if  I  had  supported,  as  an  advocate, 
the  cause  of  the  claimants  as  my  colleague  has  sustained  that  of  the 
Venezuelan  Government.  I  have  not  bettered  the  arguments  of  the 
claimants;  I  have  contented  myself  with  weighing  them.  When  I 
have  accorded  indemnities  it  is  because  I  have  considered  these  argu- 
ments acceptable.  I  have  not  furnished  personal  "arguments."  I 
add  that  nothing  prevented  the  Venezuelan  Government,  defendant, 
from  imitating  the  claimants,  plaintiffs;  it  could,  in  order  to  relieve  its 
arbitrator  from  being  at  the  same  time  its  advocate,  positions  diffi- 
cult to  unite,  have  appointed  special  advocates  in  each  case  to  produce 
documents  and  to  call  upon  witnesses.  It  does  not  belong  to  me  to 
seek  for  the  reasons  why  it  has  not  done  so.    . 

a  Page  282. 


316  COMPANY    GENERAL    OF   THE    ORINOCO    CASE. 

In  the  second  place  I  maintain,  in  spite  of  the  explanations  given  by 
my  honorable  colleague,  that  the  phrase  of  the  minutes  "  to  see  if  it 
might  be  possible  to  arrive  at  an  agreement  "  can  not  have  any  other 
sense  than  that  which  I  have  given  it  in  my  memoir.  To  refuse  this 
would  be  the  same  as  to  declare  that  it  has  no  sense,  that  which  I  can 
not  admit.  To  arrive  at  an  agreement  after  we  have  given  opinions  so 
diametrically  opposite,  it  woidd  be  necessary  that  each  of  us  grant 
concessions.  On  my  side  I  would  have  to  lessen  the  amount  of  the 
indemnity;  on  his  side.  Doctor  Paúl  would  have  to  consent  to  accord 
one.  In  pronouncing  this  phrase,  which  he  himself  had  inscribed 
in  the  minutes,  my  colleague  then  considered  himself  the  possibility  of 
according  an  indemnity  to  the  company;  there  is  no  getting  around  it. 

In  the  third  place,  I  agree  that  Mr.  Pietri,  Venezuelan  })lenipoten- 
tiary  had,  like  other  plenipotentiaries,  only  powers  "ad  referendum." 
This  does  not  avoid  the  fact  that  ^Ir.  Pietri  was  a  ^'enezuelan  vested 
with  high  oilicial  character,  and  that,  despite  liis  well-known  patriot- 
ism, despite  the  high  functions  with  which  his  Government  had 
honored  liim,  despite  his  knowing  the  judgments  of  the  liigh  court 
condemning  the  company,  Mr.  Pietri  recognized  the  right  of  the  com- 
pany to  receive  eight  years  ago  an  indemnity  of  3,600,000  boUvars  in 
gold.     That  is  all  I  wish  to  establish. 

The  argument  that  my  honorable  colleague  gathers  from  the  refusal 
of  Congress  to  ratify  the  diplomatic  act  signed  by  Mr.  Pietri  has  in  my 
opinion  no  value.  In  fact,  it  is  true,  that,  if  instead  of  having  been 
accorded  by  sentences  of  arbitral  tribunals,  the  indenmities  iixed  by 
the  umpires  in  the  mixed  commission  had  been  the  result  of  diplomatic 
agreements  submitted  to  the  ultimate  ratification  of  Congress,  i]jft 
latter  would  have  rejected  them  all  as  it  rejected  the  Pietri-IIanotaux 
protocol;  it  is  just  because  the  claims  of  foreigners  force  Venezuela  to 
such  a  plea  in  bar  that  it  has  been  necessary  to  have  recourse  to  arbi- 
tration, and  in  truth  I  do  not  think  that  one  can  demand  of  the  elected 
representatives  of  a  country  who  have  to  reckon  with  the  legitimate 
susceptibility  of  national  self-love  that  they  condemn  their  t)wn 
country  with  the  im})artiality  and  indiU'erence  which  foreign  umpires 
alone  can  show. 

Then  my  honorable  colleague  maintains  that  it  is  the  large  nmouiii 
of  the  indemnity  accorded  by  the  ]*ictri-IIanotaux  protocol  that  i)re- 
vented  Congress  from  ratifying  this  act.  I  admit  that  willingly,  but  I 
ought  to  remark  without  insisting  that  there  can  be  other  reasons  of 
which  we  are  ignorant  since  the  sitting  of  (\)ngress  in  the  course  of 
which  tliis  protocol  was  examined  was  a  secret  session  nnd  no  jourmd, 
so  far  as  I  know,  has  been  published. 

In  the  fourth  ])lace  1  ought  io  remark  in  the  additional  nicnioir  of 
my  honorable  colleague,  an  inter])retation  of  the  ])rotocol  of  February 
19,  1902,  entirely  unexpected.     Doctor  Paid  maintams  that  the  pro- 


ADDITIONAL    OPINION    OF    FRENCH    COMMISSIONER.  317 

tocol  of  Paris  and  the  protocols  of  Washington  arc  not  aUke  ;  that  the 
first  does  not  give  the  arbitral  connnission  the  same  powers. as  the 
second.  I  find  to  the  contrary  that  from  the  point  of  view  of  the 
extent  of  powers  the  protocol  of  Paris  being  less  precise  is  by  that 
very  reason  broader  than  the  protocols  of  Washington. 

As  the  protocol  signed  at  Paris,  February  19,  1902,  the  protocol 
signed  at  Washington,  February  27,  1903,  has  suspended  the  applica- 
tion of  the  French- Venezuelan  convention  of  1885  which,  during  all 
the  time  that  the  effect  of  these  two  protocols  remain  in  force,  is  a  dead 
letter.  Both  to  an  equal  degree  have  been  exceptions  to  common  law 
represented  by  tliis  convention,  winch  has  regained  its  force  only 
when  the  operations  are  ended  of  an  exceptional  order  })rovided  by 
the  protocols.  Only  wliile  the  protocol  of  Paris  announced  this  evi- 
dent truth,  the  ])rotocol  of  Washington  considered  it  as  so  evident  that 
it  did  not  tlfink  it  necessary  to  speak  of  it.  To  uphold  the  contrary 
would  be  to  maintain  that  the  protocol  of  Washington  abrogated  for- 
ever the  convention  of  1885,  that  which  would  not  be  the  business  of 
the  Venezuelan  Government,  would  not  displease  the  French  inhabiting 
Venezuela,  who  consider  that  this  convention  of  1885  deprives  them 
of  the  effective  protection  of  their  legation. 

Tliis  sentence 

it  is  understood  that  this  procedure  *  *  *  jg  instituted  only  as  an  exceptional  act  and 
does  not  invalidate  the  convention  of  November  26,  1886, 

signifies  that  as  soon  as  the  protocol  of  1902,  wliich,  having  created 
a  procedure  of  exceptional  arbitration,  shall  have  brought  forth  all 
its  effects,  the  convention  of  1885  wdll  remain  the  only  convention 
in  force  between  the  two  liigh  contracting  parties.  To  give  any  other 
sense  to  this  plu^ase  and  to  make  it  say  that  the  said  convention  is 
opposed  to  the  protocol  while  the  latter  is  in  application  is  to  put 
the  protocol  in  opposition  to  itself  and  to  take  from  it  every  kind 
of  significance.  Then,  like  the  commission  appointed  by  the  pro- 
tocol of  Wasliington,  like  the  arbitral  tribunal  which  rendered  its 
award  on  the  Fabiani  affair  at  Berne,  and  based  it  upon  denials 
of  justice  imputable  to  the  Venezuelan  tribunals  of  all  grades,  this 
commission  has  full  powers  to  examine  all  the  judgments  rendered 
by  all  the  Venezuelan  tribunals,  and  to  accord  indemnities  if  it  finds 
that  there  have  been  denials  of  justice.  To  adopt  any  other  inter- 
pretation, as  my  honorable  colleague  has  done,  refusing  to  this  com- 
mission the  power  to  review  a  judgment  of  the  high  Federal  court, 
w^ould  be  to  take  away  from  the  protocol  of  Paris  its  efficiency,  wliich 
protocol  has  for  a  purpose  to  correct  failures  of  Venezuelan  justice. 
There  can  not  be  the  shadow  of  a  doubt  of  this,  and  in  tli.e  course  of  our 
labors  at  Caracas  my  colleague  admittetl  it  lümself  when  he  consented 
to  accord  an  indemnity  to  the  claimant  Mr.  Rogé,  who  had  been 
unduly  condenuied  by  a  Venezuelan  tribunal. 


318  COMPANY    GENERAL    OF   THE    ORINOCO    CASE. 

In  the  last  place  I  am  oblio^ed  to  give  my  idea  of  one  of  the  dossiers 
Avliich  my  honorable  colleague  has  joined  to  liis  additional  memoir. 
This  dossier  represented  by  papers  forwarded  by  Mr.  ^Vndrau  Moral 
was  handed  to  me  to-day,  February  10,  for  the  first  time.  I  have  the 
right  to  ask  nwself  what  are  the  reasons  wliich  have  led  this  former 
representative  of  the  company  thus  to  betra}-  the  company  which  he 
formerl}"  served.  Has  Mr.  Andrau  Moral  been  guided  only  by  the  love 
of  truth  and  the  search  for  justice?  Does  not  his  treason  result, 
rather,  from  positive  advantages  upon  the  nature  of  which  I  can  not 
insist?  Or,  indeed,  is  it  the  manifestation  of  a  hostility  wliich  might 
have  for  its  foundation  the  refusal  of  the  company  to  pay  certain 
sums  to  the  interested  party,  or  the  manner  in  wliich  the  latter  may 
have  thanked  him  for  his  services?  Of  these  three  reasons,  which  is 
the  one  which  has  induced  Mr.  .Vndrau  Moral  to  take  such  a  step  for 
the  purpose  of  injuring  the  company?  I  have  not  the  means  of  infor- 
mation sufficient  to  be  well  informed.  So  I  can  only  ask  the  umpire 
to  kindly  wait,  before  taking  into  consideration  the  statements  of  Mr. 
Andrau  Moral,  giving  no  value  whatever  to  his  insinuations,  the 
arrival  of  information  which  I  have  demanded  from  Paris  b}-  tele- 
graph upon  the  integrity  of  this  person  thus  appearing  at  the  last 
moment  and  upon  the  conditions  under  which  he  left  the  service  of 
the  company.  On  the  nature  of  this  information  \nll  depend  the 
credit  which  is  suitable  to  attach  to  his  statements.  As  for  the  letters 
of  ]VIr.  Delort  joined  in  the  original  to  the  factum  of  Mr.  Andrau  Moral 
we  can  see  only  the  manifestation  of  the  desire  of  the  company  to 
settle  tliis  claim  by  a  compromise  whicli  Mr.  Delort  with  his  experience 
of  men  and  tilings  in  Venezuela  thought  oiúj  possible  after  a  iliplo- 
matic  action  should  have  been  engaged  in.  Besides,  the  letter  of  Mr. 
Delort,  referred  to  by  my  colleague,  if  anyone  wishes  to  read  it  from 
first  to  last  and  not  to  consider  it  as  an  extract,  is  not  intended  in 
truth  to  edify  one  with  regard  to  the  habits  of  the  "  men  in  power  "  m 
Venezuela,  but  it  is  in  no  way  of  a  nature  to  s])read  doubts  upon  the 
right  of  the  company  to  receive  the  indemnity  which  I  persist  in  con- 
sidering as  due  it. 

NoRTHFiELD,  February  10,  1905. 


EXHIBIT  TO  THE  FOREGOING  OPINION. 

Reverting  to  the  "P.  S."  joined  to  my  memoir  sent  to  the  umpire  to  exphiin  my  opinion 
on  the  cliiim  of  tlie  Company  General  of  the  Orinoco,  1  have  tlie  iionor  to  rt'i;  it  to  the  I  !on. 
Mr.  Plumley  tlie  following:  telegram,  which  I  received  this  day  from  Mr.  Delort.  I  translate 
it  from  the  telegraphic  style  to  facilitate  the  reading. 

*  Pahis,  Ffbmanj  IS,  1905. 

I  hecame  acfjuainted  with  Mr.  .\ndrau  Moral  at  Caracas  in  ISSt).  I  Ic  asked  me  for  employ- 
ment. The  minister  of  France,  Mr.  dc  Tallcnay.  gav(>  mc,  as  information,  that  he  had  l>cen 
obliged  to  leave  the  French  ainiy  for  misdi'meaiior.     He  then  came  to  .seek  his  fortune  at 


ADDITIONAL    OPINION    OF    FRENCH    COMMISSIONER.  319 

the  mines  of  Callao,  married  at  Ciudad  Bolívar,  entered  tlic  company  of  tlif  Orinoco  in  1891, 
being  chosen  by  the  agent  of  the  company  at  Ciudad  Bolívar  without  the  director  of  the 
company  at  Paris  being  informed,  to  take  command  of  the  l)oat  Lihertad,  wliich  lie  lost  the 
same  year  in  a  strange  manner.  I  found  him  at  Caracas  in  October,  1891,  and  his  relations 
represented  him  as  the  representative  of  tlie  lifjuidation  during  a  very  short  time.  He 
demanded  money  continually  and  was  a  veiy  active  agent  for  the  claim  against  the  Venezue- 
lan Government .  We  do  not  then  imderstand  iiis  protest.  In  1893  he  received  the  order  of 
the  liquidators  to  transmit  his  power  and  documents  to  Mr.  Maninat,  a  new  representative. 
He  left  the  company,  taking  away  important  pieces  from  the  dossier  and  was  sent  from 
Venezuela  in  1893  by  President  Crespo  for  an  act  of  indelicacy  notoriously  well  known.  He 
came  to  Paris  to  ask  me  for  a  loan  and  forgot  to  pa}'  me.  I  have  not  seen  him  since  and  the 
liquidators  remain  without  news  from  him.  His  protest  without  right,  value,  or  reason  is 
an  infamous  and  inexcusable  act.  Wait  the  dossier  which  we  are  forwarding  you  and  which 
will  furnish  proofs.     Please  send  copy  of  the  protestation. 

(Signed)  Delort. 

When  the  dossier  mentioned  reaches  me,  I  will  present  it  as  a  second  annex  to  my  memoir 
after  having  shown  it  to  my  honorable  colleague. 

E.  DE  Peretti  de  La  Rocca. 
NoRTHFiELD,  February  IS,  1905. 

The  French  arl)itrator  has  the  honor  to  remit  to  the  umpire  a  dossier  of  twelve  exhibits 
which  has  just  been  sent  to  him  by  the  Company  General  of  the  Orinoco  in  view  of  destroy- 
ing the  effect  which  may  have  been  produced  bj'  the  protestation  of  Mr.  Andau  Moral 
remitted  by  the  Venezuelan  arbitrator.  It  will  be  enough  for  Mr.  Plumley  to  read  the  letter 
of  Mr.  Andau  Moral  of  the  date  of  June  19,  1893,  and  to  compare  it  witli  his  letter  of  1904  to 
take  account  of  the  authority  which  the  declaiations  of  this  person  may  have  that  the  com- 
pany seems  justified  in  accusing  him  of  liaving  written  his  protestation  for  monc}'.  In  fact 
the  19th  of  June,  1893,  Mr.  Andau  Moral  wrote  to  the  liquidators  of  the  company'  : 

"I  put  myself  at  your  disposal  for  the  steps  to  be  taken  to  obtain  from  the  Government 
the  support  which  is  necessary  for  the  liquidation  to  bring  to  a  head  the  legitimate  claims 
against  Venezuela." 

As  for  the  letter  of  Mr.  Delort  of  November  25,  1891,  which  my  colleague  tries  to  use  as  a 
weapon  against  the  company,  I  will  remark  to  Mr.  Plumley  that  the  company  itself  produces 
a  copy  of  it  in  the  support  of  this  claim.  I  rnaintain  that  there  has  not  been  any  line  of  this 
letter  from  which  one  can  raise  an  argument  against  the  legitimacy  of  the  claim  in  question. 

E.  de  Peretti  de  La  Rocca. 

NoRTHFiELD,  Mavch  1,  1905. 


NOTE    WITH   REGARD   TO   M.  ANDRAU    MORAL   FOR   M.  DE    PERETTI    DE    LA    ROCCA. 

On  his  arrival  in  Caracas,  October  25,  1891,  he,  M.  Delort,  was  received  by  M.  Andrau 
Moral,  and  great  was  his  surprise  for  he  believed  iiim  to  be  on  the  Orinoco  on  board  the 
Lihertad,  which  he  commanded.  He  was  ignoiant  in  fact  of  the  loss  of  tins  steamer  of  which 
he  had  not  yet  received  the  news  on  his  departure  from  France.  M.  Andrau  Moral  was  not 
unknown  to  M.  Delort  of  whom  he  had  asked,  in  1880,  to  be  appointed  on  the  mission  which 
the  Messrs.  Perière  had  sent  to  Venezuela  to  study  the  resources  of  this  country  and  the 
business  enterprises  whicli  might  succeed  there. 

M.  Delort  had  been  placed  at  the  head  of  this  mission.  In  tiie  programme  of  the  investi- 
gation were  included  tiie  four  mines  of  Callao  and  M.  Andrau  Moral  had  come  from  Callao, 
where  he  had  been  employed,  to  Caracas  to  oiler  his  services,  but  the  information  gained 
with  regard  to  him  by  tiie  Marquis  de  Tallenay,  ciiargé  d'affaires  of  France  in  Wnezuela, 
prevented  the  acceptance  of  these  oilers.  M.  de  Tallenay  informed  M.  Delort  that  M.  Andrau 
Moral  had  been  obliged  to  leave  the  French  army  for  misdemeanor.  In  1883  M.  Delort  ran 
across  M.  Andrau  Moral  at  Panama,  where  he  was  in  the  employ  of  the  Inter-Oceanic  Canal, 


320  COMPANY    GENERAL    OF    THE    ORINOCO    CASE. 

and  since  that  time  he  liad  not  seen  him.  Aiter  the  failure  of  the  enterprise  of  the  canal, 
M.  Andrau  Moral  had  come  back  to  Ciudad  Bolívar,  where  he  had  married  a  Venezuelan  girl 
in  ISTi).  He  obtained,  in  1S91,  from  the  agent  of  the  Company  General  of  the  Orinoco  in 
liquidation,  M.  Boulissière,  the  command  of  the  ste&mcr  Libertad.  M.  Bt)ulissière  did  not 
inform  tlie  people  at  Paris  of  this  nomination,  so  that  the  liquidators  found  it  out  only 
through  the  report  of  the  said  agent  relative  to  an  attack  on  this  steamer  in  April,  1S91,  by 
the  armed  l)ands  of  Valentini  Perez. 

After  the  loss  of  the  Libertad  in  August  M.  Andrau  Moral  had  come  l)ack  to  Caracas.  He 
explained  to  M.Dclort  tliat  going  up  the  Orinoco  August  6,  at  5.1.5  in  the  morning  at  about 
8  nules  from  Buenavista,  the  Z-iWioi/  had  encountered  a  squall  from  the  east  so  violent 
that  the  steamer  had  capsized  in  a  moment  and  was  wrecked  by  the  explosion  of  the  boiler  a 
moment  later.  It  was  a  great  lo.ss  to  the  company,  the  steamer  having  cost  a  hundred 
thousand  francs.  At  any  other  time  M.  Delort  would  have  wished  to  make  an  investigation 
with  regard  to  the  responsibility  of  M.  Andrau  Moral  in  the  loss  of  the  said  steamer  of  which 
he  was  the  captain:  but  he  was  so  preoccupied  with  the  .situation  tiiat  tiie  judgment  of  the 
high  court,  rendered  October  14,  ISOl,  was  going  to  cause  to  the  lii|uidation  of  the  company 
that  he  laid  aside  this  investigation  for  the  time.  lie  had  taken  counsel  of  the  advocates  of 
the  company  as  to  the  measures  to  be  taken  and  as  the  latter  saw  no  other  action  possible 
than  a  claim  through  diplomatic  means,  it  was  necessary  to  prepare  tiiis  In'  evidence  for  the 
chargé  d'afl'aires  of  France  at  Caracas,  M.  de  Lacvivier.  M.  Andrau  Moral  was  at  that  time 
•on  excellent  terms  with  the  said  chargé  d'affaires.  He  offered  M.  Delort  to  aid  him  in  his 
work  which  he  was  rushing  as  much  as  possible  in  order  to  return  to  Paris  where  his  presence 
was  necessary.  It  was  neceasary  to  be  ac(|uainted  with  Venezuela  and  Caracas  to  under- 
stand tlie  position  in  which  M.  Delort  was  placed.  The  president.  Dr.  Andueza  Palacio, 
whom  he  knew  very  well  and  for  whom  he  had  even  had  the  opportunity  to  render  a  .service 
some  years  before  wiien  he  was  in  a  precarious  position,  refused  to  receive  him,  and  the 
ministers  followed  his  example.  The  representative  of  the  liquidation,  M.  Fiat,  who  had 
become  an  emploj-ee  of  the  Government,  luid  handed  in  his  resignation  and  wished  to  with- 
draw through  fear  of  compromising  himself.  For  M.  Delort  personally,  it  was  all  right,  but 
it  was  not  necessary  that  he  should  speak  of  the  Orinoco.  No  merchant  would  have  accepted 
the  representation  of  the  company  through  fear  of  the  Government.  In  such  circumstances 
M.  Delort  was  well  pleased  at  finding  in  M.  Andrau  Moral  a  person  who  did  not  fear  to  com- 
promise himself  in  openly  supporting  the  company,  and  as  M.  Delort  did  not  wi.sh  to  remain 
at  Caracas  more  than  one  month  he  had  with  the  said  Andrau  Moral  the  advantage  of  the 
man  already  acquainted  with  the  affair  and  being  able  to  prosecute  it  effectively  with  the 
French  legation  where  he  was  very  well  regarded.  M.  Delort  then  thought  no  more  about 
an  investigation  with  regard  to  the  loss  of  the  Libertad.  He  considered  tlie  faults  of  youth 
as  peccadillos  to  be  forgotten,  and  he  prepared  M.  Andrau  Moral  to  continue  in  the  business 
of  which  he  had  laid  the  foundation. 

Moreover,  M.  de  Lacvivier  encouraged  M.  Delort  in  this  respect.  On  going  away  the 
latter  left  to  M.  Andrau  Moral  the  instractions  of  which  a  copy  is  here  attached,  but  not  wish- 
ing, however,  to  invest  him  with  powers  of  attorney  without  the  approbation  of  the  li(iui- 
dator,  M.  Roux,  he  remitted  in  lilank  tiie  said  powers  to  tlie  legation  of  France,  awaiting  the 
decision  of  the  liciui<lator. 

M.  Andau  Moral  was  known  to  Doctor  Urbaneja,  legal  coun.sel  of  the  lompany,  whose 
advice  he  was  to  follow.  M.  Delort  went  back  to  France  and  arrived  in  Paris  the  15th  of 
December.  He  had  to  explain  first  the  situation  of  the  company  in  ^'ene7.uela  and  the 
liquidator  wished  to  call  a  meeting  of  the  stockholders  to  explain  it  to  them.  M.  Delort  had 
brought  to  M.  Roux  a  letter  from  M.  Andau  Moral,  dated  November  15,  offering  him  his 
services,  a  cojiy  of  the  reply  of  M.  Roux,  dated  the  24th  of  December,  1891,  lieing  annexed. 
M.  Andau  Moral  wrote  again  to  the  Tuiuidator  offering  once  more  his  services,  dated  the  17th 
of  Noveml)er. 

.lanuary  5  M.  Roux  telegraphed  to  M.  Andrau  Moial  that  he  agreed  to  give  him  the  |H>wers 
of  atloiiiey.     M.  Andau  Moral  wrote  to  M.  Delort  the  5th  of  January  a  letter  to  bi>  for- 


ADDITIONAL    OPINION    OF    FRENCH    COMMISSIONER.  321 

warded  to  the  liquidator,  in  which  ho  dcclarod  that  lie  would  demand  payment  of  a  regular 
salary  and  othenvise  he  spoke  of  accepting  other  oiTers  which  were  made  him.  M.  Koux 
replied  to  him  by  a  first  letter  of  the  25th  of  January  and  then  by  a  second  letter.  As  a 
result  of  this  correspondence  M.  Andrau  Moral  had  represented  the  liciuidation  provisionally 
from  the  date  of  the  departure  of  M.  Delort  the  15th  of  November,  to  January  5.  1S92,  and 
officially  from  January  5,  1.S92,  to  February  25,  1892,  on  which  date  he  received  the  letter 
informing  him  that  M.  Maninat  had  been  .selected  and  that  he  was  to  turn  over  his  powers 
to  him. 

But  M.  Maninat  to  whom  they  had  written  at  the  same  time  to  represent  the  company, 
did  not  put  himself  forward  in  this  affair,  at  this  time,  made  no  reply,  and  took  no  steps  with 
M.  Andrau  Moral  who  continued  to  represent  the  company  t^oluntarily, but  he  had  really  noth- 
ing to  do.  Aflairs  remained  thus  during  the  whole  year  of  1892,  which  was  exceedingly 
troublesome  in  Venezuela  becau.se  of  the  civil  war,  the  fall  of  Doctor  Palacio,  and  the  final 
victory  of  General  Crespo.  M.  Maninat  had  come  to  France  toward  the  close  of  1892  and 
they  had  prevailed  upon  him  to  accept  the  power  of  attorney  of  the  company.  A  letter  was 
written  to  him,  of  which  a  cop}-  is  added.  M.  Maninat  on  his  arrival  at  Caracas  went  to  the 
legation  to  demand  the  dossier  of  the  documents  relative  to  the  claims  of  the  Company  Gen- 
eral of  the  Orinoco  in  liquidation.  He  was  then  informed  that  M.  Andrau  Moral  had  taken 
possession  of  some  important  exhibits  and  had  gone  away  without  returning  them,  and  of 
this  act  M.  Maninat  informed  those  at  Paris.  M.  Delort  demanded  these  documents  of 
M.  Andrau  Moral,  who  replied  that  he  had  left  them  with  his  cousin  Mathew  Valéry,  at  La 
Guaira  M.  Delort  then  communicated  with  this  said  Valéry  who  pretended  to  have  sent 
them  back  again  to  M.  Andrau  Moral  and  sent  a  letter  herewith  attached,  a  copy  of  which 
was  transmitted  to  M.  Andrau  Moral  who  declared  that  the  agent  of  the  post  in  question  had 
remitted  nothing  to  him. 

Finally  M.  Andrau  Moral  has  restored  nothing.  M.  Andrau  Moral  was  without  pereonal 
resources  and  he  expected  to  receive  regularly  from  the  hquidator  a  monthly  allowance 
which  would  permit  him  to  live.  He  complained  much  because  the  liquidator,  M.  Roux,  had 
not  wished  to  assist  him.  But  at  this  time  the  liquidation  had  some  heavy  expenses  to 
meet  in  regulating  other  aiïairs  more  important  than  a  salary  to  M.  Andrau  Moral.  On  the 
other  hand,  the  dossier  of  the  company  ought  first  of  all  to  have  been  examined  at  the  min- 
istry of  foreign  affairs.  There  was  really  nothing  to  be  done  at  Caracas,  as  M.  Andrau  Moral 
himself  knew.  They  did  not  see  under  these  conditions  the  necessity  of  paying  him,  and 
the  ofl"er  which  M.  Roux  had  made  him,  placing  to  his  credit  some  settlements  to  be  made 
later,  was  a  gratuitous  kindness.  Nevertheless  he  drew  several  checks  upon  M.  Roux  and 
M.  Delort,  together  2,500  francs,  drafts  which  were  paid.  Thak  could  not  continue  and  M. 
Delort  urged  him  while  waiting  to  take  some  employment.  M.  Andrau  Moral  had  been  able 
to  win  the  good  will  of  M.  de  Mondar,  so  that  he  got  him  the  appointment  of  consular 
agent  of  France  at  La  Guaira,  to  which  he  added  the  consular  agency  of  Colombia  in  this 
same  port.  So  in  this  manner  he  found  the  means  of  existence.  Unfortunately  ho  had 
many  political  friendships  and  in  this  time  of  troubles  of  expulsions  and  of  flights  he  aided 
in  the  flight  of  certain  compromised  men.  M.  de  Mondar  did  not  pardon  him  for  this  fault 
and  had  him  replaced.  Ho  then  went  to  ask  M.  Orsi  do  Monbdlo  to  take  him  into  his  busi- 
ness in  order  to  help  him  to  get  a  living.  M.  Orsi  de  Monbdlo  was  in  high  favor  of  General 
Crespo,  who  placed  him  in  charge  of  certain  works,  for  which  ho  was  paid  in  advance  to  a 
certain  amount,  which  is  not  common  in  Venezuela.  M.  Andrau  Moral,  who  was  notorious  at 
Carcacas,  got  rid  of  part  of  these  advances  for  him,  and  General  Crespo  learning  about  it 
sent  him  out  of  Venezuela,  causing  him  to  embark  officially  at  La  Guaira.  M.  Andrau  Moral 
came  to  Paris.  This  was  in  April,  1893.  M.  Delort  welcomed  him  kindly  and  aided  him  so 
far  as  he  could  in  his  plans,  which  he  continued  to  pureue.  M.  Roux  also  welcomed  him  and 
remitted  to  him  what  he  could.  But  the  question  of  money  always  being  the  main  thing, 
M- Andrau  Moral  drew  upon  M.  Roux  from  Ajaccjo,  where  ho  had  gone.  M.  Roux  rofusi'tl 
to  accept  and  then  received  a  letter  of  regular  blackmail. 
S.  Doc.  533,  59-1 21 


322  COMPANY    GENERAL    OF    THE    ORINOCO    CASE. 

But  M.Andrau  Moral  changed  his  mind,  and  June  18,  1893,  ho  wrote  to  the  liquidators, 
again  offering  them  his  services,  hut  this  time  for  pnx-eedings  to  \w  made  at  the  ministry'  of 
foreign  affaii-s,  where  lie  pretended  to  have  influence  powerful  enough  to  act  and  to  bring  to 
a  successful  end  the  legitimate  claims  of  the  lifiuidations  in  Venezuela.  And  it  is  after  such 
a  letter  that  M.Andrau  Moral  protests  against  the  claims  of  the  Company  General  of  the 
Orinico. 

Tlie  liquidators  of  the  company  heard  nothing  further  from  M.Andrau  Moral  after  this 
letter  of  June  18,  1893,  and  M.  Delort  has  had  no  news  from  him  since  1896.  How.  under 
these  conditions,  could  M.  Andrau  Moral  make  a  protest  and  to  what  end  ?  It  can  not  be  for 
the  remainder  of  the  credit  which  he  may  have  upon  the  liquidation,  for  it  is  to  that  alone 
that  he  ought  to  have  addressed  himself.  He  has  no  cause  of  complaint  against  the  liquida- 
tion nor  against  M.  Delort  ;  however  the  protestation  which  he  has  made  has  for  an  end  to 
injure  the  liquidation  and  M.  Delort  :  but.  then,  what  object  was  he  pursuing  ?  M.  Andrau 
Moral  is  not  a  man  to  act  without  interest,  and  for  him  interest  is  money. 

That  is  why  his  action  aside  from  its  lack  of  right,  value,  and  reason  is  contemptible 
and  csvn  only  place  in  confusion  those  who  search  to  use  it,  making  in  a  way  a  common  cause 
with  him. 

Th.  Delort. 

Paris,  Febniai-rj  17,  1905. 


OPINION   OF  THE   UMPIRE. 

The  liquidators  of  the  Company  General  of  the  Orinoco,  a  French 
company,  presented  their  claim  through  the  Government  of  France 
before  this  honorable  commission  at  its  sitting  in  Caracas  in  1903, 
claiming  indemnit}^  in  the  sum  of  7,616,098.62  francs  of  date  July  10, 
1902. 

The  claim  having  received  the  careful  consideration  of  the  honorable 
commissioners,  they  found  themselves  in  serious  disagreement,  the 
honorable  commissioner  for  France  deeming  it  just  that  there  be 
awarded  the  liquidators  the  sum  of  7,000,000  francs,  while  the  hon- 
orable commissioner  for  A'enezuela  refused  them  any  sum.  The  claim 
was  therefore  reserved  for  the  consideration  of  the  umpire,  to  whom 
it  was  presented  at  the  sitting  of  the  commission  at  Xorthfield  on  the 
13th  day  of  February  last. 

Nothing  is  in  controversy  but  the  merits  of  the  claim. 

It  arises  out  of  two  concessions  granted  by  the  respondent  Govern- 
ment. The  earlier  was  to  Miguel  Tejera,  a  Venezuelan,  through 
Gen.  Guzman  Blanco,  jilenipotentiarv  of  the  Republic  of  Venezuela, 
at  Paris,  France,  on  the  1 7th  day  of  December,  1885,  and  was  approved 
by  the  Congress  of  the  conceding  Government  May  21,  188().  made 
executory  May  24,  and  published  in  the  Official  Gazette  of  June  5 
of  the  same  year.  The  other  was  from  the  respondent  Government 
to  Theodore  Delort,  made  at  Caracas  A|)ril  1,  1887.  It  was  approve<l 
by  the  Federal  council,  later  by  the  national  Congress,  May  26,  1887, 
became  executory  May  31,  and  was  promulgated  June  13  of  the  same 
year. 

Tne  concession  to  Miguel  Tejera  was  contained  in  fifteen  articles 
and  comprised  certain  viduablo  privileges  to  and  certain  compensa- 


OPINION    OF.  THE    UMPIRE.  323 

tory  requirements  of  liini  in  substance  as  next  hereinafter  stated. 
To  the  concessionary  was  granted  the  exchisivc  right  to  exploit  all 
the  mineral  and  vegetable  productions  of  tlie  territories  of  Upper 
Orinoco  and  Amazonas;  to  construct  railroads,  telegrapli  lines,  and 
canals,  such  as  he  niiglit  think  suitable  for  the  development  of  the 
territories  and  the  expansion  of  the  enterprise,  giving  notice  always 
to  the  national  Government  of  the  time  when  such  works  were  to  be 
commenced  and  submitting  to  the  Government  the  plans  thereof; 
the  free  importation  of  all  material,  implements,  and  instruments 
necessary  for  the  construction  and  maintenance  of  the  railroads  and 
their  equipments  and  the  boats  and  their  equipments;  a  rebate  of 
10  per  cent  from  the  regular  customs  duties  on  all  other  imports  b}" 
the  concessionary;  the  ownership  in  fee  of  all  lands  occupied  by  the 
concessionary  for  farms,  pasturage,  or  industrial  purposes;  6  hec- 
tares of  land  in  fee  to  the  concessionary  for  each  immigrant  intro- 
duced into  the  said  territories  as  provided  for  in  said  concession,  the 
same  in  all  cases  to  be  taken  out  of  Government  lands;  immunity 
to  the  enterprise  from  any  and  every  impost  or  contribution  to  or 
for  Governmental  support;  right  of  navigation  of  the  lower  Orinoco 
and  of  exit  or  entry  for  his  boats  by  the  canal  ]\Iacareo  ;  that  during 
the  term  of  the  concession  the  Federal  Government  was  not  to  treat 
with  any  other  person  or  compan}''  for  the  exploitation  of  mineral 
or  vegetable  products,  steam  navigation,  and  railroads,  these  being 
declared  to  be  the  basis  of  the  contract;  the  privilege  of  assigning 
the  concession  in  whole  or  in  part  to  any  other  person,  persons,  or 
company,  limited  only  to  giving  notice  of  such  transfer  and  assign- 
ment to  the  Government  of  the  Republic;  the  concession  to  continue 
for  thirty-five  years  from  the  date  of  its  ratification  ;  at  the  expiration 
of  this  time  all  railroads  of  more  than  10  kilometers  constructed  by 
the  enterprise,  all  lines  acquired  by  the  enterprise,  and  all  mines  ex- 
ploited by  it  were  to  continue  to  be  its  property  mitil  the  end  of 
ninety-nine  years  from  the  date  of  ratification. 

The  obligations  imposed  upon  the  concessionar}^  by  the  terms  of 
the  contract  were  in  substance  these  : 

To  construct  narrow-gauge  railroads  around  the  rapids  of  the  Atiu'cs 
and  the  Maipures  in  the  Orinoco,  the  construction  to  be  commenced 
within  eight  months,  counting  from  the  date  on  which  the  ratification 
of  this  contract  should  be  communicated  to  the  concessionary;  to 
establish  steam  navigation  on  the  upper  Orinoco,  the  Casicpiiare,  and 
the  Rio  Negro,  the  first  boat  to  be  in  those  waters  within  six  months, 
counting  from  the  date  when  the  construction  of  the  railroad  should 
be  begun;  to  introduce  at  his  own  expense  into  the  said  Territories  an 
annual  number  of  immigrants  not  less  than  500;  to  erect  a  building 
for  a  school  and  a  chapel  in  each  of  the  new  villages  which  should  be 
founded  at   his  expen.se;  to  construct    at   his  expense  two  barracks 


324  COMPANY    GENKKAL    OF    THE    OKINOCO    CASE. 

suitable  to  accommodate  200  men  each,  one  of  which  should  be  near 
the  frontier  of  Colombia  and  the  other  in  the  nei<;hborhood  of  tlie 
Brazilian  frontier,  both  at  points  which  should  be  selected  by  the 
Federal  Government  and  for  whose  a[)probation  the  plans  were  to  be 
su])mitted;  to  intnxhice  into  the  said  Territories  at  least  three  Catholic 
missionaries  each  year  (Un-ing  a  period  of  ten  years;  to  support  at  his 
expense,  at  the  most  suitable  places,  hospitals  and  pharmacies  for  the 
assistance  of  the  natives  and  immi<i:rants  who  mi<rht  fall  sirk  in  the 
work  of  the  enterprise;  to  pay  to  the  national  Government  durinj;  the 
existence  of  this  contract  the  sum  of  40  bolivars  for  each  46  kilograms 
of  india  rubber  which  should  be  exported  to  a  foreii^n  country;  to  send 
a  scientific  commission  to  explore  the  two  Territories  and  to  communi- 
cate to  the  Government  the  result  of  its  labors;  to  maintain  at  his 
expense  a  body  of  police  for  the  protection  of  his  works,  the  chief  to 
be  appointed  by  the  Federal  Government;  to  proceed  to  the  exploita- 
tion of  the  vegetable  materials  in  such  manner  that  the  natural  plan- 
tations existing  might  be  preserved  in  good  condition;  to  be  respon- 
sible for  the  trees  which  might  be  destroyed  in  the  exploitation  of  the 
india  rubber  and  that  he  improve  and  benefit  these  natural  planta- 
tions; to  yield  up  to  the  Government  all  the  property  of  the  enter- 
prise, which  was  to  become  the  property  of  the  nation,  at  the  exi)ira- 
tion  of  the  general  term  of  tliirty-five  years,  excepting  the  properties 
named  heret()fi)re,  which,  under  the  privileges  of  the  concession,  were 
to  belong  to  the  company;  to  permit  that  all  dilïerences  and  contrt)- 
versies,  which  the  carrying  out  of  the  concession  might  cause,  should 
be  resolved  by  the  tril)unals  of  the  Republic  conformably  to  its  laws. 

The  enterprise  contemplated  by  the  Government  of  the  Kepublic 
and  by  the  concession  was  indeed  colossal. 

The  two  territories  included  in  the  concession  had  an  area,  as  stated 
by  Mr.  Tejera,  of  000,000  s([uare  kilometers,  it  was  imderstood  to 
contain  vast  and  fertile  plains,  forests  covered  with  wood,  rare  and 
rich;  extensive  mines  of  gold  and  silver;  other  metals  and  precious 
stones,  and  for  immediate  exportation  and  j)rolit  great  (¡uantities 
of  india  rubber,  sarrapia,  and  oil  of  copaiba.  The  Orinoco,  2,000 
miles  long,  received  within  these  Territories  its  largest  tributaries,  and 
with  these,  above  the  Maipures  ra])ids,  had  thousands  of  miles  of 
navigable  waters,  extending  west,  east,  and  south,  ¡md  beyond  the 
boundaries  of  Venezuela.  It  was  a  land  little  known  by  the  world 
at  large,  but  it  bore  the  charm  of  great  attributed  wealth  of  vege- 
table and  niiiuMal  |)roducts,  the  exclusive  exploitation  of  which  passed 
to  the  conce.ssionary  by  the  terms  of  the  conti'acl. 

From  the  map  of  \'eiiezuela,  as  (hen  constituted,  lh(>  Orinoco  and 
its  eastern  conlhicnts  wcic  all  wilhin  the  domain  of  NCnezuela,  while 
inipoi'lant  sections  of  the  western  allluents  lay  likewis(>  within  the 
Kepublic  and  under  its  control.     The  concessionary  saw  in  these  facts 


OPINION    OK    THK    FMIMHK.  325 

far-reaching  opportunities  for  exclusive  navigation  over  many  waters 
and  through  immense  regions,  and  there  came  to  him  visions,  not 
fanciful,  of  giant  fortunes.  There  was,  however,  little  genuine  knowl- 
edge of  these  Territories;  they  were  largely  unexplored  and  in  detail 
unknown.  It  afterwards  appeared  that  the  population  had  heen 
decreasing  for  some  time  through  diiïerent  causes,  and  nuuiy  villages 
once  fairly  populous  were  reduced  to  very  few  iiduihitants.  The 
rapids,  which  it  was  the  plan  of  this  concession  to  avoid  by  means  of 
railroads,  had  heen  the  suilicient  cause  both  of  the  ignorance  of  the 
outside  world  concerning  lands  lying  beyond  them  and  of  a  paucity  of 
inhabitants,  of  enterprise,  and  of  improvements  therein. 

The  conditions  peculiar  to  a  tropical  country  had  added  to  the  usual 
factors,  making  early  explorations  and  investigations  dependent 
exclusively  upon  waterways.  The  ra]:)ids  had  cut  off  approach  from 
the  north  to  the  upper  Orinoco,  as  well  as  descent  therefrom.  The 
Casiquiare  joined  together  the  Amazon  and  the  Orinoco,  and  by  this 
means  the  sea  could  be  reached  with  freight  carrying  traffic  from 
these  Territories,  and  it  was  the  only  way  by  which  the  Territories  had 
been  open  to  navigation.  It  was  only  foresight  and  patriotism  which 
suggested  the  plan  proposed  in  the  concession  to  unite  these  separated 
sections  of  Venezuela  by  means  of  steamboats  and  railways  on  and  by 
the  Orinoco. 

While  the  enterprise  promised  much  to  its  promoters  financially,  it 
bade  fair  to  be  of  untold  value  to  the  Republic  of  Venezuela. 

A  French  syndicate  was  formed  September  1,  1886,  to  take  over 
this  concession,  which  was  merged  in  the  Company  General  of  the 
Orinoco.  This  company  was  organized  at  Paris,  France,  March  28, 
1887,  with  a  capital  of  1,500,000  francs,  composed  of  3,000  shares  of 
500  francs  each.  This  company  beame  the  legal  assignee  of  the  con- 
cession of  December  17,  1885. 

April  1,  1887,  at  Caracas,  the  Government  of  Venezuela  entered 
into  a  contract  with  Theodore  Delort,  a  French  citizen,  for  the  exclu- 
sive exploitation  of  sarrapia  for  a  term  of  twenty-five  years  within  the 
Government  lands  which  are  included  between  the  eastern  boundaries 
of  the  Federal  Territories  of  Upper  Orinoco  and  Amazonas  and  British 
Guiana  and  between  the  Orinoco  and  the  Venezuelan-Brazilian  fron- 
tier. 

In  addition  to  the  provision  concerning  sarrapia  there  was  granted 
by  the  Government  the  right  to  construct  railroads  and  telegraph 
lines  wherever  deemed  necessary  for  the  development  of  its  works  and 
to  establish  rates  of  transportation  subject  to  the  approval  of  the 
Government;  to  become  the  proprietor  in  fee  of  the  lands  occupied  by 
these  establishments;  to  receive  in  fee  one  hectare  of  land  for  each 
immigrant  introduced;  to  import  free  of  duty  all  materials,  machinery, 
and  tools  necessary  for  the  exploitation  of   sarrapia  and  for  the  con- 


820  roMI'AXY    (íKNKRAL    <»F    THK    oKINítCO    <  A!^K. 

tstruction  of  steamers,  houses,  railroads,  and  teleo;raph  lines;  the  right 
to  cut  in  the  national  forests  the  wood  and  timber  to  be  used  in  all 
such  constructions;  to  have  all  these  ])rivile<;es  exclusively  durino;  the 
term  of  the  concession;  to  have  the  unliniited  rit;ht  toassi<]:nment  or 
transfer  of  said  contract  by  simply  advisin»;  the  Government  thereof. 

In  return  for  these  privileges  there  were  certain  compensatory  obli- 
gations resting  upon  the  concessionary  in  said  contract,  such  as  that 
Mr.  Delort  was  to  organize  a  company  with  sufficient  capital  to  carry 
on  the  exploitation  named;  also  imposing  these  duties — to  pay  the 
National  Government  in  specie  50  bolivarsfor  each  kilogram  of  sarra- 
pia  which  should  be  exported;  to  introduce  at  the  expense  of  the 
concessionary  immigrants  to  colonize  the  Territories  in  which  the 
exploitation  of  sarra})ia  was  to  take  place;  to  establish  hospitals  and 
pharmacies  sufficient  for  the  immigrants  and  workmen  who  might  fall 
sick;  to  introduce  Catholic  missionaries  to  catechise  the  natives  of  the 
Territories  where  the  exploitation  was  to  take  ])lace;  to  establish  steam 
navigation  on  the  princi])al  l)ranches  of  the  Orinoco  where  it  was  pos- 
sible within  the  Territories  included  in  the  contract;  totcarry  on  the 
exploitation  of  sarrapia  in  such  a  manner  as  to  keep  in  good  condition 
the  existing  plantations;  to  transmit  gratuitously  postal  correspond- 
ence. 

This  contract  was  also  taken  over  by  the  Company  General  of  the 
Orinoco,  and  it  became  the  lawñü  assignee  thereof. 

Of  both  these  assignments  to  the  Company  General  of  the  Orinoco 
the  respondent  Government  had  due  and  sufficient  notice  and  advices. 

Prior  to  the  organization  of  the  Company  General  of  the  Orinoco 
the  syndicate  heretofore  referred  to  did  nuich  toward  preparing  the 
way  for  performing  the  duties  and  gaining  the  privileges  of  the  conces- 
sion; but  immediately  following  the  organization  of  the  company  the 
enterprise  was  pressed  faithfidly  and  with  measurable  success.  I'nex- 
pected  difficulties  and  obstacles  were  met  and  overcome  so  far  as  the 
conditions  would  permit.  Steamboats  were  placed  on  the  lower 
Orinoco  for  navigation  between  Ciudad  Bolívar  and  the  Atures; 
between  the  rapids  of  the  Atures  and  the  Maipures  and  above  the  upper 
falls  for  the  service  of  the  upper  Orinoco.  By  May  2,  1887,  regular  com- 
munication had  been  established  between  Atures  and  Ciudad  Bolívar, 
the  trip  down  taking  five  days  and  the  trip  up  about  ten.  By  the 
latter  part  of  1887  the  boats  on  the  np))er  Orinoco  were  i)lying  l)et  ween 
San  Fernando  de  Atabapo  and  Mai|)ures  with  reasonable  regularity, 
accomplishing  the  service  in  about  twelve  days  from  San  Fernando 
to  Ciudad  Bolívar,  where  before  it  had  taken  three  months.  The 
distance  from  Ciudad  Bolívar  to  Atures  is  about  î)()()  kilometers,  and 
from  Atures  to  Maipures  is  about  60  kilometers,  and  from  Maipures  to 
San  Fernando  de  Atabapo  is  about  400  kilometers. 

The  discovery  of  two  rapids  between  the  Atures  and  the  .Maipures, 
not   named    in   the  contract    and   a])|)areMtIy  not    known,   practically 


OPINION    OF    THK    UMPIRE.  327 

negatived  the  idea  of  a  successful  scheme  consisting  solely  of  two 
narrow-gage  railroads  of  about  10  miles  each,  one  passing  by  the  lower 
and  the  other  by  the  upper  rapids  with  carriage  by  boats  between 
these  two  points,  as  was  contemplated  by  both  ])arties  to  the  conces- 
sion. It  was  essential  to  a  wise  issue  that  there  be  one  railroad  only 
of  sufficient  length  to  include  both  rapids,  built  at  such  distances  from 
the  river  as  the  topography  of  the  adjacent  territory  required.  This 
would  necssitate  the  crossing  of  wide  and  deep  rivers,  affluents  of  the 
Orinoco,  and  would  entail  expensive  bridges  and  viaducts. 

Such  railway  would  cover  a  distance  of  60  kilometers.  One  feature 
of  the  Orinoco  not  understood  by  either  party  to  the  concession,  as 
it  would  seem,  was  the  might}"  flow  of  waters  in  a  certain  part  of  the 
season,  reaching  forty  feet  in  height  above  low-water  mark  and 
inundating  the  country  for  leagues,  especially  on  its  western  side, 
with  a  corresponding  paucity  of  the  waters  during  the  opposing  sea- 
son. The  successfid  navigation  of  the  Orinoco  was  seriously  impaired 
by  these  facts  in  the  matter  of  accessible  ports  and  towns  of  stable  and 
organized  character  and  by  the  lack  in  parts  of  a  sufficient  depth 
of  water  at  its  lowest  ebb  for  the  passage  of  such  boats  as  the  general 
condition  of  navigation  in  the  upper  Orinoco  seemed  to  demand.  It 
also  preventetl  the  railroads,  which  by  the  terms  of  the  concession 
were  to  be  built  around  the  upper  and  lower  rapids,  from  being  located 
near  the  banks  of  the  river  as  they  existed  in  the  ordinary"  flow. 

A  temporary  railway  was  constructed  around  the  lower  rapitls  on 
the  right  and  around  the  upper  rapids  on  the  left  of  the  Orinoco  in 
order  to  lift  the  steamers  overland  and  to  points  where  they  could 
be  again  placed  upon  the  river  for  purposes  of  navigation  between 
the  rapids  and  above.  By  this  means  steam  navigation  was  estab- 
lished on  the  upper  Orinoco. 

These  railways  were  built  and  used  for  no  other  purpose.  They 
could  not  be  permanently  maintained  at  these  places  because  the 
annual  floods  would  lay  them  deep  beneath  the  waters. 

Instead,  pending  the  building  of  a  satisfactory  railroad  line,  cart 
roads  were  built  around  each  of  the  rapids;  carts,  mules,  and  other 
draft  animals  were  secured  and  maintained,  and  in  this  way  and  by 
these  means  and  by  the  aid  of  an  adequate  ferry  upon  the  Cataniapo, 
and  by  a  raft  upon  the  Tuparo,  the  products  from  the  Territories 
were  carried  by  the  rapids  and  taken  up  by  the  steamers  in  the  lower 
Orinoco,  and  similarly  transportation  was  eflected  from  the  lower 
to  the  upper  Orinoco.  It  was  not  transportation  by  railroads  around 
the  rapids,  but  it  linked  together  steam  navigation  on  the  Orinoco 
and  opened  up  the  Territories  of  the  Upper  Orinoco  and  Amazonas  and 
this  outer  world  by  way  of  northern  Venezuela. 

Important  steps  in  the  construction  of  the  railroads  were  taken 
and  while  in  fair  progress  the  work  was  interrupted  and  prevented  by 
serious  inundations  covering  quite  a  period  of  time. 


328  ("OMl'ANï    (JENEUAL    <>F    THE    ORINOCO    CASE. 

During  the  years  1887-'8  the  company  entered  upon  the  construc- 
tion of  a  railroad  from  the  mouth  of  the  Cano  Meta  to  the  Rio  Ventu- 
ario  above  the  great  rapids,  uniting  the  Caura  with  tlie  upper  Orinoco. 
The  progress  of  this  work  was  interrupted  when  twelve  leagues  had 
been  completed  by  the  impressment  of  the  workmen,  under  order  of 
the  Government  of  Caura,  to  be  used  as  troops  in  the  defense  of  the 
Government  against  the  revolution.  The  work  thus  interrupted  was 
never  completed . 

Contrary  to  the  early  expectations  of  the  projectors  of  the  enter- 
prise, it  was  impossible  to  obtain  the  recjuisite  labor  in  the  countrA^ 
where  the  work  was  to  be  performed,  and  it  l)ecame  necessary  to 
obtain  workmen  from  Ciudad  Bolívar  and  even  from  Trinidad. 

In  the  Upper  Orinoco  a  census  of  all  the  workmen,  including  men, 
women,  and  children,  did  not  exceed  one  thousand. 

Stations  and  depots  were  duly  established  by  the  company  at 
Punta  Brava,  at  the  mouth  of  the  Caura,  at  the  ports  of  Perico, 
Salvajito,  Atures,  Maipures,  Vichada,  San  Fernando  ile  Atabapo,  San 
Carlos,  and  at  the  Brazilian  frontier;  storehouses,  workshops,  and 
supplies  were  at  the  stations  Atures  and  Maipures;  there  were  phar- 
macies at  all  the  stations  centralized  at  Puerto  Perico;  there  was  a 
chapel  and  home  for  the  priest  at  San  Fernando  de  Atabapo.  The 
company  also  established  herding  and  agriculture  at  La  ^'ichada. 

The  flora  of  the  territories  was  carefully  studied  and  reported  upon 
by  Doctor  Gaillard,  a  distinguished  expert,  the  result  of  his  investi- 
gations being  printed  in  two  volumes  and  presented  to  the  Venezuelan 
Government.  Explorations  were  made  on  the  rivers  Vichada,  Guavi- 
are,  Inirida,  Ventuario,  Atabapo,  Guainia,  and  the  Casiquiare. 

When  the  steamers  were  all  placed  as  used  in  the  enterprise  of  the 
company,  there  were  the  Libertad,  Caroni,  Caura,  and  the  Maipire 
for  navigation  between  Ciudad  Bolívar  and  the  lower  rapids;  the 
Meta  and  Maipures  between  the  rapids;  the  Atures,  Naroa,  Eva,  and 
San  Fernando  for  the  traffic  of  the  upper  Orinoco,  of  which  steamers 
the  first  two  made  occasional  trips  to  the  Brazilian  frontier  and  t)n 
the  river  Atabapo  as  far  as  Javita  when  the  condition  of  water  per- 
mitted. By  means  of  the  boats  between  the  rapids  the  journey, 
which  formerly  occupied  three  or  four  days,  was  accom])lished  by 
them  in  six  hours. 

The  company  made  careful  reports  of  its  proceedings  annually,  in 
1888,  18S9,  and  1890,  and  these  reports  were  furnished  to  the  Vene- 
zuelan ministers  of  public  works  and  of  fomento,  so  that  they  were 
ftilly  advised  of  the  doings  of  the  enterprise. 

Agencies  were  established  by  the  company  at  San  Fcruando  de 
Atabapo,  San  Carlos,  and  at  the  Brazilian  frontier. 

During  the  earlier  stages  of  the  enterprise  it  depended  for  infor- 
niatit)n,  to  n  large  degree,  U])on  its  assignor,  Mr.  Tejera,  who,  in  addi- 


OPINION    OF    THE    I'MIMHK.  820 

tion  to  a  familiarity  with  the  general  characteristics  of  the  country, 
gained  in  his  department  of  minister  of  public  works  of  the  Republic 
of  Venezuela,  had  paid  officiai  visits  to  the  parts  involved  in  this  con- 
cession. Much  of  his  informaticm  must  have  been  obtained  at  second 
hand,  after  all,  for  it  was  seriously  inexact  and  proved  so  misleading 
as  to  be  ver}^  expensive  to  the  company. 

Experience  gave  the  enterprise  to  know  that  in  the  upper  part  of 
the  Orinoco  its  banks  and  the  banks  of  the  Casifjuiare  and  of  the 
Atabapo  were  completely  inundated  during  the  seasons  of  high  water, 
which  extended  over  a  period  of  four  or  five  months  and  attained  a 
very  serious  maximum  every  ten  or  twelve  years.  As  a  result  they 
are  uninhabitable,  except  at  certain  elevated  points,  and  the  distance 
between  these  points  is  sometimes  as  great  as  200  kilometers.  The 
company  found  the  native  population  very  much  scattered  and  estab- 
lished at  places  in  the  interior  both  above  and  beyond  the  reach  of  the 
annual  floods.  It  w^as  also  learned  that  there  was  no  agriculture  and 
no  live  stock;  that  even  to  sustain  life  in  these  regions  was  difficult  and 
many  died  of  hunger. 

The  annual  production  of  rubber  in  these  Territories  at  the  begin- 
ning of  the  exploitation  of  the  Orinoco  did  not  exceed  40  tons.  There 
were  also  50  to  60  quintals  of  copaiba  oil  and  a  few  tons  of  piassava, 
although  in  the  interior  there  w^ere  great  opportunities  for  obtaining 
much  larger  products  of  all  these,  the  development  of  which  was  a 
part  of  the  plan  and  the  hope  of  the  company. 

Except  at  Atures  with  three  families  and  Maipures  with  one  family 
there  was  no  village  upon  the  banks  of  the  Orinoco  from  Cariben  to 
San  Fernando  de  Atabapo. 

In  February,  1889,  application  was  made  by  the  manager  of  the 
enterprise  to  the  minister  of  fomento  for  lands  which  had  been  visited 
and  selected  on  which  to  place  the  immigrants  wdio  were  expected  in  a 
few  months.  It  was  explained  in  this  communication  that  any  earlier 
bringing  of  immigrants  had  been  impossible,  since  the  company's 
means  of  transportation  had  been  inadequate  to  suppl}^  their  needs,  as 
everything  on  which  they  were  to  subsist  at  first  must  be  brought  into 
the  countr}^.  The  lands  selected  and  applied  for  were  situated 
opposite  San  Fernando  de  Atabapo.  No  reply  w^as  received  to  this 
application. 

In  the  early  part  of  the  year  1 889, 370  head  of  live  stock  were  obtained 
in  Buena  Vista  and  were  sent  across  the  savannas  to  the  A'ichada, 
where,  as  has  been  previously  stated,  an  hato  had  been  established. 

The  necessity  of  building  one  railroad  of  60  kilometers  to  go  round 
the  four  rapids  was  fully  develo])ed  to  the  national  Government  by 
the  manager  of  the  enterprise  as  early  as  February  4,  1889.  A  state- 
ment of  the  probable  expense  w^as  given  at  the  same  time  and  the 
proposition  was  made  to  the  Government  that  a  7  per  cent  guarantee 


HHO  f'O.Ml'ANV    (iKNKKAL    <»K    THK    <>KIN<>("<>    CASE. 

be  made  to  secure  its  construction.  The  estimated  cost  was  60,000 
francs  to  each  kilometer.  No  reply  was  made  })y  the  national 
authorities. 

For  the  two  years  of  1888  and  1889  the  company  had  a  reo^ular 
monthly  .service  from  Ciudad  Bolívar  to  San  Fernando  de  Atabapo, 
and  witliout  accident  carried  every  payin^j:  pa.s.sen<íer  who  offered  him- 
self for  transportation.  In  1888  General  Silva,  j^overnor  of  the  Terri- 
tories Upper  Orinoco  and  Amazonas,  with  his  o^eneral  secretary  and  a 
laroje  staff,  went  from  Ciudad  Bolívar  to  San  Fernando  de  Ata.bapo  to 
take  up  his  office  under  the  national  Government  in  the  boats  of  the 
company,  takino;  with  liim  also  his  troops,  tliirty  soldiers,  his  bago:a^e, 
and  his  provisions;  similarly'  General  Silva  descended  the  Orinoco  in 
1889,  and  General  Cabellero,  receiving  his  appointment  as  governor 
to  succeed  General  Silva,  went  from  Ciudad  Bolívar  to  the  capital  of 
these  Territories  in  the  boats  of  the  company;  later  he  came  down  on 
leave  in  these  boats  and  again  went  back  to  his  post  in  the  same  vf&y, 
the  company  receiving  no  compensation  for  all  the  service  above 
stated. 

It  was  the  universal  custom  of  the  company  to  receive  as  passengers 
without  pay  all  employees  of  the  Government.  It  carried  tlie  mail 
free  from  Ciudad  Bolívar  to  San  Fernando  de  Atabapo,  and  by  means 
of  its  agencies  performed  the  service  of  the  budget  of  these  Territories 
without  commission  or  compensation. 

September  15,  1888,  tlie  steamer  Libertad  was  requisitioned  by 
lawful  authorities  to  transport  troops,  material,  and  provisions  to  the 
fort  of  Guyana  Vieja  in  defense  of  the  national  Government.  Reim- 
bursement was  demanded  of  these  authorities  by  the  company,  but 
was  refused.  The  fuel  for  the  steamers  and  even  the  board  of  the 
crew  during  the  trip  was  furnished  without  recompense  by  the 
company. 

In  December,  1888,  the  lawful  authorities  again  recjuisitioned  the 
steamer  Libertad,  which  during  the  whole  of  that  month  made  trips 
loaded  with  troops  between  Calcare  and  Rio  Caura.  To  the  request 
of  the  company  for  an  indemnity  there  was  a  refusal.  It  was  at  this 
time  that  the  workmen  uj)on  the  railroad  running  out  from  (^aura,  an 
incident  previously  mentioned,  as  well  as  the  agricidtural  laborers  of 
the  company,  were  impressed  by  the  Government  to  march  against 
the  revolutionists.  None  of  the  workmen  ever  returned  to  the  service 
of  the  enterju'ise. 

October  ',U ,  ISSS,  the  pro  tempore  gov(M"nor  of  U|)per  Orinoco  and 
Amazonas  Territories  issued  a  decree  annulling  all  of  the  accounts  of 
the  Indians  with  the  company  wherein  they  were  del)tors.  This  was 
done  in  the  especial  interest  of  Valentin  Perez  and  other  like 
contractors. 


OPINION    OK    THK    lîMl'IKK.  881 

Governor  d'Aubeterre  carried  with  him  to  San  Fernando  de 
Ata})apo,  Ills  caj^ital  city,  a  considerable  sto('k  of  did'erent  kinds  of 
merchandise  for  the  purpose  of  traliic  in  india  rubber,  which  traille  he 
entered  upon  openly,  in  so  far  opposing  the  rights  of  the  company  in 
exploitation  of  this  j^roduct. 

In  December,  1889,  the  same  «governor  caused  u  ])etition  to  be  sii^ned 
against  the  company  by  persons  of  little  standing,  in  this  way  attack- 
ing the  company  instead  of  assuring  the  execution  of  its  contract. 

At  the  same  time  a  similar  petition  was  passed  among  the  merchants 
of  Ciudad  Bolívar.  Tlie  claimants  assert  that  it  was  done  at  the 
instigation  of  the  minister  of  the  interior. 

Early  in  the  year  1890,  Governor  d'Aul)eterrc  nuuh^  a  long  journey 
into  the  interior  of  the  Territories  in  order  to  gather  up  the  largest 
quantity  possible  of  india  rubl)er  which  had  been  harvested  by  means 
of  advances  made  to  the  harvesters  l)y  the  company. 

May  17,  1890,  a  ministerial  decree  authorized  the  j)roprietors  of 
sarrapia  and  other  natural  products  to  export  them  freely,  paying  the 
same  duty  as  the  company. 

The  historical  order  is  here  interrupted  to  name  a  very  important 
matter,  which  may  well  be  under  consideration  as  having  explanatory 
value  in  connection  with  the  events  of  1888  to  1891.  both  inclusive. 

The  Venezuelan-Colombian  boundary  (|uestion,  which  for  a  long 
time  had  been  a  matter  of  diplomatic  contnn'ersy  between  these  two 
countries,  by  a  treaty  executed  by  them  September  14,  1881,  was 
submitted  to  the  arbitration  of  his  Majesty  the  King  of  Spain.  Gen. 
Guzman  Blanco  was  then  Presitlent  of  the  Republic  of  Venezuela  and 
executed  on  its  behalf  the  treaty  aforesaid.  On  February  15,  1885, 
at  Paris,  for  and  on  behalf  of  his  Government  he  signed  a  declaration 
extending  the  time  within  which  the  award  could  be  made. 

October  28,  1887,  the  minister  for  foreign  affairs  for  Colombia  wrote 
from  Bogotá  to  the  minister  of  foreign  affairs  for  Venezuela  asking  for 
explanations  concerning  the  prospectus  with  map  accompanying 
which  had  been  published  in  the  interests  of  the  concession.  The 
nature  of  his  communication  can  best  be  gained  from  the  letter  itself, 
W' hich  is  here  reproduced  : 

BoGOT.\,  Ovtoher  28,  1887. 

Mr.  Minister:  A  French  society  known  as  the  "Company  Gonoial  of  the  Upper  Orinoco" 
has  pubHshed  a  memoir  or  description  upon  the  concessions  wliich,  it  saj's,  tlie  Government 
of  your  excellency  has  granted  to  it  of  certain  rights  within  the  Territories  Upper  Orinoco 
and  Amazonas  of  the  Republic  of  Venezuela. 

Annexed  to  the  memoir  concerned  is  a  geographical  map  in  which  the  boundaries  of  the 
said  territories  on  the  western  side  arc  marked  in  such  a  manner  that  they  include  the  large 
tract  of  land  which  in  this  part  is  in  litigation  between  Colombia  and  Venezuela,  and  of  which 
in  virtue  of  the  treaty  of  arbitration  (arbitramiento  juris)  of  December  11,  1881,  the  true 
ownership  is  to  be  settled  bv  the  sentence  of  the  Government  of  Spain. 

I  have  the  honor  to  call  the  attention  of  j'our  excellency  to  this  point,  being  convinced 
that  the  Government  of  Venezuela,  in  accord  with  the  Kepublic  of  Colombia,  will  recognize 


8;^2  ("OMI'A.VV    (iENKRAL    OF    THE    ORINOCO    CASK. 

that  tht>  error  of  the  Compiiny  of  tlio  Upper  Orinoco  cau  not  be  passed  over  in  silence,  consid- 
»  ring  that  it  affects  a  solemn  agreement  l)ot\veen  the  two  nations,  in  which  is  ceded  in  an 
absolute  manner  to  a  third  parly  the  right  as  arbitrator  to  define  the  boundary  which  s<'pa- 
rates  Colombia  and  Wnezuela. 

It  is  evident  that  neither  of  our  Governments  can  make  any  valid  concession  upon  the 
said  land:  it  is  equally  evident  also  that  the  error  of  the  Company  Cieneral  of  the  I'pper 
Orinoco  can  have  no  other  cause  than  that  of  agreeing  with  geographical  or  statistical  data 
anterior  to  the  above-mentioned  treaty  of  1881,  which  places  this  zone  of  territory  ¡n  a 
condition  not  only  litigious,  but  about  to  be  settled  in  an  exclusive  manner  by  an  arbitrator 
airead}'  appointed. 

I  have  the  gratification  to  profit  from  this  circumstance  to  renew  to  your  excellency  the 
expression  of  my  most  distinguished  consideration. 

(Signed)  F.  Ángulo. 

To  Ills  Excellency  the  Minister  of  Foreign  Affairs  of  the  United  States  of 

Venezuela. 

It  does  not  come  to  the  knowledge  of  the  umpire  that  any  reply  was 
made  by  the  Government  of  \'enezuela  to  this  note  from  Colombia  : 
neither  is  there  anything  to  indicate  that  the  attention  of  the  Comi)any 
General  of  the  Orinoco  was  immediately  called  to  the  c|iiestions  raised 
l)y  the  note. 

The  first  oilicial  attention  given  to  its  contents,  so  far  as  is  known  to 

the  umpire,  is  found  in  the  action  of  the  minister  of  foreign  affairs  for 

Venezuela  in  addressing  a  communication  to  the  minister  of  fomento, 

in  substance  following: 

Caracas,  Xovember  2ó,  1S87. 

The  minister  of  foreign  relations  of  the  Republic  of  Colombia  has  brought  to  the  knowl- 
edge of  this  department  that  the  French  company  known  as  the  "Company  General  of  the 
Orinoco"  has  published  a  memoir  with  a  map  annexed  in  which  is  included  in  the  limits  of 
the  territory  conceded  to  the  said  society  the  territory  in  litigation  between  the  twocountries. 

To  be  able  to  reply  to  the  said  note  of  the  Colombian  minister  it  is  necessary  to  have 
before  us  the  said  memoir,  which  I  pray  you  to  send  me  by  right  of  devolution  if  it  is  found 
in  the  department  under  your  charge. 

1  am,  etc.,  Diego  B.  Urbaneja. 

To  this  there  was  a  reply  on  the  next  day,  as  follows: 

Sir:  As  it  has  never  been  remitted  to  this  department  I  find  it  impossible  for  me  to  remit 
to  the  mini.stry  over  which  you  preside  so  worthily  the  memoir  of  the  Company  General  of 
the  Upper  Orinoco,  of  which  your  communication  of  the  25th  of  the  present  month  treats. 

This  seems  to  be  the  end  of  progress  in  this  line  until  about  August, 
1S88,  when  the  minister  of  Colombia  renews  his  in(|uiries,  as  appears 
from  the  communication  of  the  minister  of  fomento,  as  follows: 

Caracas,  ,1  ut/ust  10,  ¡888. 
In  order  to  examine  and  resolve  a  claim  of  the  Kepui)lic  of  (\)lond)ia  I  have  need  to  have 
before  my  eyes  a  copy  of  the  contract  ])as.sed  with  the  Company  General  of  tlie  Upper 
Orinoco  and  Amazonas. 

That  is  why  I  |>i'ay  you  to  give  me  information  of  the  concessions  and  pri\  ¡leges  made  to 
the  said  company. 

1  am,  etc.,  A.  YsTi  Riz. 


OPINION  OF  thî:  umpire,  333 

To  this  there  is  a  reply  on  the  tlay  succeeding  in  these  terms: 

Caracas,  Augusi  11,  1888. 
Sir:  In  reply  to  your  lottor  of  the  10th  of  the  present  month,  No.  293,  I  have  the  lionor 
to  send  you  tlie  OfTicial  Gazette  of  February  20,  1886,  No.  3,698,  in  which  is  published  the 
contract  with  the  Company  General  of  tlie  Orinoco. 

I  am,  etc.,  Fombona  Palacio. 

There  follow  successive  communications  between  these  ollicials  of  the 
Government  relative  to  this  ail'air  which,  perhaps,  arc  better  (pioted 
in  full  than  placed  in  abstract.     They  are  therefore  subjoined: 

Caracas,  August  13,  1888. 
Sir:  Besides  thecontractof  the  Company  of  the  I'pper  Orinoco  and  Amazonas  constituted 
in  virtue  of  the  concession  made  to  Mr.  Tejera,  which  you  have  kindly  remitted  to  me  in 
the  corresponding  number  of  the  Official  Gazette,  I  should  be  very  grateful  to  you  to  send 
me  a  general  report  upon  the  proceedings  of  this  company  to  the  department  under  your 
worthy  charge,  as  also  every  communication  which  this  company  may  have  made  upon  our 
maps,  notices,  or  memoirs  relative  to  the  privilege  which  the  said  contract  gives  it. 

YSTÚRIZ. 

Caracas,  August  21,  1888. 
Sir:  In  reply  to  your  note  of  the  13th  instant.  No.  297,  I  have  the  honor  to  inform  you 
that  the  company  which  has  been  exploiting  tlie  Territories  Upper  Orinoco  and  Amazonas 
since  the  date  of  its  contract,  December  17,  1885,  has  asked  of  this  department  exemptions 
from  import  duties  at  different  dates  upon  the  objects  destined  for  its  works  ;  that  it  announced 
November  14,  1887,  that  the  steamers  Atures  and  ¿'va  had  passed  above  the  rapids  of 
Maipures,  and  that  the  latter  .steamer  arrived  at  San  Fernando  dc  Atabapo  the  ;3()th  of 
August,  1887,  and  as  to  that  which  concerns  the  memoir  published  In'  this  company  relative 
to  the  said  territories  I  remit  it  to  you  inclosed  with  its  map  annexed. 

I  am,  etc.,  Gil. 

Caracas,  September  15,  1888. 

Sir:  The  envoy  extraordinary  of  the  Republic  of  Colombia  has  made  a  claim  against  the 
publication  of  a  geographical  map  and  of  a  memoir  of  the  Company  of  the  Upper  Orinoco 
and  Amazonas,  in  whicli  in  describing  the  limits  of  its  concession  it  has  included  as  having 
been  ceded  vast  extents  of  land  in  litigation  between  the  two  countries. 

Con.sequently,  considering  the  necessity  of  examining  the  .said  map  and  memoir,  I  hope 
that  you  will  kindly  send  them  to  this  ministry  if  they  exist  in  your  department,  and  if  not 
I  pray  you  to  a.sk  the  representative  of  the  company  mentioned  for  information  as  to  what 
has  been  done  in  this  regard  and  also  the  map  and  memoir  concerned. 

YsTi'-Riz. 

On  the  18th  of  September,  1888,  the  minister  of  fomento  advises  the 
minister  for  foreign  relations  by  note  in  part  as  follows: 

I  am  addressing  myself  this  very  day  to  Mr.  Th.  Delort,  contractor  of  the  Territories  Upper 
Orinoco  and  iVmazonas,  asking  him  for  information  as  to  the  contents  of  your  said  communi- 
cation, and  as  soon  as  I  shall  receive  them  it  will  be  veiy  agreeable  to  me  to  send  it  to  tlie 
ministry  over  which  you  preside  so  worthily. 
I  am,  etc., 

COROXALIM). 


334  COMPANY    (íEXERAL    of    THK    ORINOCO    CASE, 

The  letter  addressed  to  Th.  Dolort.  the  iiiana<ior  of  the  oompanv.  hy 
the  minister  of  fomento  is  here  quoted: 

Sir:  In  an  official  note  of  the  15th  of  this  month  the  ministrj^  of  foreign  relations  savs  to 
this  department  that  which  follows.     (Here  is  a  reproduction  of  the  letter  of  the  15th.) 

I  communicate  to  j'ou  this  note  in  order  that  you  may  give  me  information  on  the  subject 
of  which  it  treats. 

CORONALDO. 

Tlie  reply  of  Mr.  Delort  was  made  two  days  later  and  is  of  the  tenor 

followinij;: 

(•.\RACAS,  September  20,  1888. 

The  Minister  of  Fomento:  I  have  just  had  the  honor  of  receiving  your  note  of  the  18th 
instant,  to  which  I  reply  as  follows: 

In  forming  the  Company  of  the  Upper  Orinoco  there  was  made  at  Paris  a  memoir  for  the 
shareholders  only  in  whidi  was  reproduced  the  contract  which  M.  Miguel  Tejera  had  trans- 
ferred to  the  company,  and  furthermore  an  extract  from  the  statutes  and  different  infomia- 
tion  on  the  natural  products  which  according  to  the  contract  were  to  be  exploited.  This 
memoir  was  accompanied  l)y  a  map  in  order  that  the  shareholders  might  know  where  the 
territories  conceded  for  their  exploitation  were  situated.  This  map  was  copied  from  that 
which  accompanies  the  statistics  which  the  national  Government  has  published  in  different 
languages. 

The  memoir  does  not  treat  of  the  frontiers  between  Colombia  and  Venezuela  nor,  more- 
over, of  the  vast  extent  of  territories  conceded  to  the  company;  it  treats  only  of  natural 
products  of  the  vast  region  which  forms  the  Territories  Upper  Orinoco  and  Amazonas. 

The  company  is  not  ignorant  that  the  boundaries  between  Venezuela  and  Coloml)ia  are 
found  in  litigation  and  .submitted  to  the  arbitraton  of  the  Government  of  Spain.  Conse- 
quently it  has  no  pretension  on  this  subject,  and  holding  the  concession  from  Venezuela  it 
knows  very  well  that  it  ought  to  conform  itself  to  the  frontiers  which  shall  be  definitely 
fixed  by  this  Republic. 

Up  to  the  present  the  company  has  extended  its  exploitation  only  upon  the  points  occu- 
pied by  the  Venezuelan  authorities.  Its  agencies,  its  shops,  and  dependencies  arc  situated 
at  Atures,  Maipures,  San  Fernando,  San  Carlos,  and  the  frontier  of  Brazil,  and  its  steamers 
have  navigated  only  upon  the  Orinoco,  Casiquiare,  and  the  Guainia.  I  regret  not  being 
able  to  send  you  the  memoir  in  question,  but  two  copies  ought  to  exist  in  your  ministry, 
sent  by  the  agent  of  the  company  in  this  city. 

I  hope  that  the  explanations  which  I  have  the  honor  of  sending  you  will  satisfy  you ,  so 
that  3'ou  can  render  justice  to  our  right  conduct  in  such  circumstances. 

With  sentiments,  etc.,  Delort. 

In  this  connection  the  umpire  decides  to  accept  as  the  trutli  the 
statement  of  Mr.  Delort  and  his  associates,  which  is  found  as  a  ])art  of 
the  testimony  in  this  case,  that  the  18th  day  of  September,  1888,  was 
the  first  (hiy  on  which  either  he  or  the  company  knew  that  the 
Venezuelan-Colombian  boundary  line  was  then  in  process  of  settlement 
by  arbitration.  Not  only  are  they  entitled  to  belief  since  no  one  (Hs- 
putesthem  further  than  Mr.  Delort's  own  statement  of  the  2()th  instant, 
but  many  of  the  ])revious  ticts  of  Mr.  Delort  and  of  the  company  were 
<Mitircly  inconsistent  witli  such  knowl(nlo;e.  It  is  easier,  therefore,  to 
reconcile  his  words  with  the  fact  of  ii^norancí»  than  his  acts  with  the 
fact  of  knowlec !»;<'. 

'I'lie  (iovenuneiit  of  \'ene/,uehi  remitted  to  {\w  (  îo\  erunieiil  of 
("olond)ia  the  letter  of  Mr.  Delort  above  (pioted. 


OPINION    OF    THE    TTMPIRE.  335 

Colombia,  however,  was  not  satislied,  aiul  January  24,  1890,  it 
again  returned  to  the  subject.  The  position  of  Colombia  upon  this 
matter  was  unambip;uous,  indeed  positive,  and  there  is  no  question  in 
the  mind  of  the  umi)iro  that  the  situation  had  become  very  embarrass- 
ing and  troublesome  to  the  Government  of  Venezuela. 

In  the  judgment  of  the  umpire  it  was  not  ignorance  nor  forgetfulness 
on  the  part  of  General  Blanco  or  Mr.  Tejera  which  kept  them  silent 
concerning  the  boundary  question,  in  their  intercourse,  not  infrecjuent, 
with  the  company  and  its  otíicers  and  manager.  The  umpire  believes 
that  they  both  regarded  the  matter  as  unimportant  in  its  probable 
effect  upon  the  enterprise  of  the  concession,  for  the  reason  that  both 
considered  a  decision  in  any  consideral)le  degree  unfavorable  to  Ven- 
ezuela as  practically  impossible.  This  ex])]anation,  most  favorable  to 
them,  and  at  the  same  time  most  probably  the  truth,  is  the  <me  ac- 
cepted by  the  umpire. 

May  28,  1890,  the  national  attorney  of  the  exchef|uer  of  the  United 
States  of  Venezuela,  by  direction  of  the  president  of  the  Republic, 
tlu'ough  the  minister  of  fomento,  entered  in  the  high  Federal  court  of 
the  Republic  a  suit  against  the  Company  General  of  the  Orinoco  for  the 
rescission  of  the  contracts  of  concession  which  this  company  had  taken 
over  respectively  from  Miguel  Tejera  and  Theodore  Delort.  The  peti- 
tion or  declaration  alleges  in  substance  and  in  general  terms  that  the 
Government  on  its  part  had  fulfilled  the  stipulations  agreed  to  in  both 
of  the  said  concessions;  and  in  like  general  terms  that  the  company,  on 
its  part,  had  not  fulfilled  its  obligations;  first,  as  to  the  contract  of 
December  17,  1885,  in  Nos.  1.  2,  3,  4.  5,  6,  7,  and  9,  of  Article  II.  and 
all  of  Articles  V  and  X;  second ,  as  to  Nos.  2,3,4,5,  and  6  of  Articles  III 
of  the  contract  of  April  1 ,  1887.     The  petitionspecifically  alleges  that — 

the  Government  has  not  received  any  notice  tliat  the  cessionary  company  has  begun  its 
works,  and  it  is  a  fact  that  no  railway  hno  has  l)cen  offered  to  the  public,  nor  any  steam 
launch  nor  steamship  line. 

It  is  also  alleged  specifically  in  said  petition  that  the  cessionary 
company  exported  tlirough  the  custom-house  in  Ciudad  Bolívar 
during  the  years  1887,  1888,  and  1889,  india  rubber  weighing 
73,292.20  kilograms,  and  had  paid  accordingly  to  the  Government 
the  sum  of  63,740  bolivars  at  the  rate  of  40  bolivars  for  each  46 
kilograms,  as  provided  in  the  contract  of  concession  of  December  17, 
1885,  and  that  the  quantity  of  sarrapia  exported  by  the  said  com- 
pany through  the  same  custom-house  and  in  the  same  years  was 
44,569.76  kilograms,  for  which  there  was  paid  to  the  Government 
the  sum  of  84,445.74  bolivars,  at  the  rate  of  56  bolivars  for  46  kilo- 
grams, as  agreed  in  the  contract  of  April  1,  1887,  making  in  all  the 
sum  of  148,186.74  bolivars.  It  is  also  alleged  in  the  j)etition  that  a 
contract  is  not  deemed  fulfilled  by  the  obligee  save  when  it  has  been 
so  fulfilled  in  all  the  stipulât i(ms  whicli  it  contains  and  that  specially 


38<î  roTiPANY    GENERAL    OF    THE    ORINOCO    CASE. 

in  this  caso  in  which  they  are  so  hnked  between  themselves  that  fail- 
ing one  the  wliole  or  object  of  the  contract  does  not  exist,  and  hence 
the  conclusion  drawn  by  the  said  Government  that  said  convention 
has  not  been  fulfilled.  That  the  inexécution  of  these  contracts  on 
the  part  of  the  cessionary  company  has  caused  the  Government  very 
grave  damages  and,  therefore,  it  is  obliged  to  ask  before  the  high 
Federal  court  its  solution. 

The  especial  (lania<j:es  named  in  the  petition  are  the  losses  which  the 
Government  had  sullered  from  the  duties  remitted  under  the  contract 
upon  articles  imported  by  the  company,  as  well  as  the  loss  of  duties 
on  the  india  rubber  and  sarrapia  exported.  The  domicile  of  the  com- 
pany is  alleged  to  be  in  Paris  and  that  it  is  without  a  legal  representa- 
tive in  Venezuela.  The  Government  asks  for  procedure  in  accordance 
with  Article  XXVIII  of  its  civil  code;  alleging  ftirther  that  the  com- 
pan}'  may  be  sued  under  such  circumstances  as  exist  in  this  case  by 
virtue  of  the  provisions  made  in  both  contracts  in  reference  thereto 
and  in  virtue  also  of  Article  XXVI  of  the  civil  code,  which  applies  to 
suits  where  the  contracts  are  to  be  executed  in  \'enezuela.  The  peti- 
tioner also  asks  that  the  formalities  be  observed  provided  for  in  such 
cases  in  Article  XCIII,  XCIV,  and  XCV  of  the  Code  of  Civil  Procedure. 

Reliance  is  had  in  the  petition  on  Articles  MCX,  MCLXIII,  and 
MCLXXII  of  the  civil  code  as  justifying  fully  the  procedure  on  the 
part  of  the  Government  for  the  annulment  and  rescission  of  said  con- 
tracts and  for  the  recovery  of  the  losses  and  damages  suffered  by  it 
from  their  nonexecution  by  the  cessionary  company. 

The  suit  was  didy  entered  'n  the  high  Federal  court  on  May  28, 
189Ü,  and  on  the  3üth  day  of  the  same  month  the  president  of  the  said 
court  issued  a  writ  stating  therein  that — 

Considering  that  according  to  the  documents  annexed  to  the  suit  Messrs.  Andrds  Fiat 
and  Bernabé  Planas  appear  to  be  the  representatives  of  the  company  in  Venezuehx,  order  is 
hereby  given  for  them  to  be  summoned  in  order  that  they  may  declare  if  they  are  still  hold- 
ing the  power  of  the  company,  and  in  order  to  appoint  a  counsel  for  the  defendant  in  case 
they  are  no  longer  attorneys  of  the  company,  in  accordance  with  the  law. 

The  proceedings  show  that  both  of  these  gentlemen  were  duly  sum- 
moned on  that  same  day  and  that  on  June  2  following  they  appeared 
in  court  and  declared  that  Mr.  Andres  Fiat  was  then  theoidy  r('])re- 
sentative  of  the  company  in  (^aracas  and  that  he  woidd  a]>]iear  in 
court  on  the  41h  day  of  that  month  and  produce  his  ])ower  of  attorney. 
This  was  done  and  a  translation  of  the  sam(>  was  ordered,  and  on  the 
16th  day  of  June  this  was  completed  and  a('c('])tcd  by  tiic  courl  and  a 
summons  ordered  ii])()n  Mr.  Fiat. 

On  the  l!)th  day  of  June  the  claim  for  damages  was  icduccd  hy  (lie 
attorney  of  the  Government  from  ()00,()()()  bolivars  to  4(),()4S.()2  boli- 
vars, and  on  the  same  day  Mr.  Fiat  received  and  receipted  for  the  ('oi)> 
of  the  ])eli(i«)ii.  On  I  lie  same  day  llie  court  issued  a  decree  by  which 
an  ocdei' was  made  1«»  not  iiy  Mr.  I^'iat  of  the  ainendineiit  to  t  he  ])etition 


OPINION    OF    THE    UMPIRE.  337 

above  stated  and  to  give  him  a  copy  of  the  amendment.  Mr.  Fiat  was 
also  directed  in  the  order  to  receipt  for  this  cop}^  and  to  present  in 
court  his  answer  to  the  petition  after  ten  days  from  Jime  19.  This 
order  was  (hdy  served  on  ^Ir.  Fiat  on  the  day  of  its  issue  and  he  gave 
liis  receipt  to  that  effect  on  June  20.  July  2,  the  day  appointed  for 
the  answer,  ^Mr.  Fiat  appeared,  accompanied  by  his  counsel,  D.  B. 
Urbanoja  and  R.  F.  Feo,  and  as  well  appeared  the  fiscal  nacional  de 
hacienda.  It  was  then  and  there  agreed  to  defer  the  answering  of  the 
suit  to  a  date  fixed  at  eight  days  after  the  presentation  of  the  docu- 
ments to  which  reference  is  made  in  the  suit  by  the  plaintiff,  in  order 
that  the  company  should  have  time  to  examine  these  documents. 
On  Juh'  22  ^Ir.  Fiat  with  his  counsel,  above  named,  appeared  in 
court  and  filed  his  answer  to  the  suit;  at  the  same  time  he  preferred 
his  petition  for  an  extraterritorial  term  in  order  to  obtain  evidence 
from  France  and  Rome.  The  suit  progressed  in  ordinary  course, 
during  which  the  parties  were  to  produce  their  respective  evidence, 
the  court  reserving  its  right  to  decide  on  the  petition  of  Mr.  Fiat  in 
regard  to  an  extraterritorial  period  of  time.  Later  on  the  president 
of  the  court  granted  one  hundred  days  to  obtain  this  extraterritorial 
evidence,  and  Mr.  Fiat  having  appealed  from  this  decision  on  the 
grounds  that  the  term  granted  was  too  short,  the  court  then  extended 
it  to  one  hundred  and  thirty  days. 

September  .5,  Mr.  Fiat  was  notified  that  the  fiscal  had  petitioned  the 
court  that  the  suit  might  be  registered  in  Ciudad  Bolívar,  in  order  to 
avoid  any  transfer  intended  by  the  company.  That  he  received  this 
notice  is  established,  because  at  the  foot  of  it  is  set  his  signature,  and 
on  September  8  he  appeared  in  court,  accompanied  by  his  said  coun- 
sel, and  declared  that  he  had  no  opposition  to  make  to  the  recording 
of  the  suit,  with  the  alterations  which  were  made  to  it  afterward. 
The  court  issued  an  order  on  the  same  day  that  a  copy  of  the  suit  be 
sent  to  the  judge  of  the  first  instance  of  Ciudad  Bolívar,  that  it  might 
be  recorded  in  the  registry'  office  in  that  city,  and  said  order  was  car- 
ried into  effect  on  the  same  day. 

August  7,  1890,  ;Mr.  Fiat  presented  the  court  with  a  petition  asking 
that  evidence  might  be  promoted  as  he  thought  convenient  to  the 
case  of  the  company.  As  a  part  of  this  evidence  were  declarations  to 
be  made  b}^  witnesses  resident  in  Paris,  Rome,  Port  of  Spam.  Rio 
Chico,  Barcelona,  San  Fernando  de  Apure,  and  Caracas. 

The  president  of  the  court  issued  a  \vTÍt,  dated  August  12,  admitting 
the  promotion  of  such  evidence  as  far  as  the  law  permitted,  and  com- 
missioned seA'eral  civil  judges  of  first  instance  of  the  residences  of  the 
respective  witnesses  to  hear  their  declarations;  he  also  issued  rogatory 
commissions  petitioning  the  competent  judges  af  Paris,  Rome,  and 
Port  of  Spain  for  the  same  purpose.  October  1 1  of  the  same  year,  Mr. 
Fiat  appeared  in  court  and  stated  that  by  virtue  of  the  authority  con- 
tó. Doc.  533,  09—1 J-J 


338  COMPANY    GENERAL    OF    THE    ORINOCO    CASE. 

f erred  on  liim,  1)y  his  jwwer  of  attorney  from  the  company,  he  conferred 
a  special  power  on  Dr.  Ramón  Feo  and  Dr.  Martin  F.  Feo,  so  that  both 
together,  or  eitlier  one  of  them  separately,  mifrht  intervene  in  the  col- 
lecting of  evidence  that  had  to  be  made  by  the  fiscal  in  the  city  of 
Caracas,  and  also  stating  that  he  conferred  special  power  on  persons 
resident  at  Porto  Rico,  Barcelona,  Ciudad  Bolívar,  San  Fernando  de 
Apure,  Port  of  Spain,  and  for  the  territories  of  Orinoco  and  Amazonas, 
for  the  collecting  of  evidence  on  behalf  of  the  company  in  their  respec- 
tive districts,  and  to  intervene  in  the  collecting  of  evidence  by  the  plain- 
tiff in  the  same  districts.  October  11,  1S90,  the  president  of  the  court 
ordered  that  commissions  and  petitions  be  issued  to  the  different  par- 
ties named  by  Mr.  Fiat  as  aforesaid,  and  that  said  petitions  and  com- 
missions contain  the  powers  conferred  on  them  as  requested  by  Mr. 
Fiat.  The  said  order  was  carried  into  execution  October  13,  and  the 
said  commissions  and  petitions  being  issued  were  handed  to  the 
defendant. 

All  these  commissions  and  petitions  were  duly  returned  after  having 
been  carried  into  operation,  with  the  exception  of  those  addressed  to 
the  judges  of  Paris  and  Trinidad  and  to  His  Excellency  Cardinal 
Simeoni  of  Rome,  which  were  not  returned  by  the  representative  of 
the  company,  although  they  were  given  him. 

March  24,  1891,  marked  the  expiration  of  the  time  given  for  the  col- 
lecting of  testimony,  and  on  that  date  the  president  of  the  court  ordered 
that  the  papers  and  records  of  the  suit  be  sent  to  the  fidl  court,  wliich 
was  duly  effected. 

April  29,  the  fiscal  moved  the  court  to  begin  the  study  of  the  papers 
and  records  of  the  suit  and  that  an  order  be  issued  for  that  purpose. 
On  May  21,  1891,  the  fiscal  renewed  his  motion,  and  on  May  23,  an 
order  was  issued  to  begin  the  study  of  the  papers  and  records  on  the 
30th  of  that  month.  This  study  begun  in  fact  on  June  16,  and  pro- 
ceeded on  June  24,  the  court  not  being  in  session  on  the  17th  to  23d, 
inclusive. 

On  the  1st,  4th,  and  7th  of  August  suppletory  judges  were  called  to 
fill  the  vacancies  existing.  Two  of  those  selected  were  excused  on 
their  own  petition.  On  September  16,  the  full  court  was  made  by  the 
suppletor}'  judge,  Dr.  Carlos  F.  Grisanti,  and  the  19th  was  appointed 
for  the  study  of  the  process.  The  study  was  begun  as  ordered,  and 
proceeded  on  the  21st  of  September  and  following  days  until  the  25th. 
The  29th  of  September  was  appointed  to  hear  the  reports  or  proceed- 
ings of  the  plaint iif  and  defendant.  The  records  of  the  25th  of  Sep- 
tember show  this  note  by  the  secretary: 

CAR.\rAS,  September  25,  1891. 
In  the  sitting  of  this  day  the  .study  a  ¡^  examination  of  xhv  papers  and  records  by  the  court 
was  completed,  and  tlie  sitting;  of  tlie'iOth  current  is  appointed  for  plaintiff  and  «lefendnnt  to 
present  their  respective  reports  or  pleadings.     Let  the  parties  \yv  notified. 

().   BlROOS. 


OPINION   OF    THE    UMPIRE.  339 

There  was  no  decree  of  the  court  ordermg  the  parties  to  be  invited, 
as  appears  of  record. 

September  29,  the  fiscal  nacional  do  hacienda  appeared  in  court,  })ut 
no  representative  or  counsel  on  behalf  of  the  defendant.  The  court 
proceeded  to  sit  in  conference. 

From  September  30  to  October  13,  only  one  sitting  of  the  court  took 
place,  wliich  was  on  the  3d  of  October,  on  which  day  the  judges  con- 
ferred on  the  sentence  to  be  passed  and  ao;reed  as  to  the  same.  October 
14  the  sentence  was  dra^v^l  and  sij^ned  by  the  members  of  the  court. 

As  appears  from  the  liistory  already  given,  the  suit  for  rescission 
was  begun  in  1890,  May  28;  summons  to  the  defendant  was  issued  May 
30;  and  on  June  2  Mr.  Fiat  appeared  in  the  high  Federal  court  and 
avowed  and  acknowledged  liimself  the  legal  representative  in  Caracas 
of  the  Company  General  of  the  Orinoco.  On  the  next  day,  the  min- 
ister of  foreign  relations  atCaracas,  wrote  the  minister  plenipotentiary 
of  the  Republic  of  Colombia  to  the  United  States  of  Venezuela  as 

follows  : 

The  Minister  of  Foreign  Relations, 

Caracas,  June  3,  1890. 
Mr.  Minister:  Relative  to  the  confidential  memorandum  of  August  9,  1888,  and  to  the 
note  of  your  excellency  of  January  24,  concerning  a  memoir  published  by  the  Company 
General  of  the  Orinoco,  I  have  the  honor  to  communicate  to  your  excellency  that  the  Govern- 
ment has  resolved  to  demand  of  the  said  company  the  rescission  of  the  original  contract. 
Please  accept,  etc., 

M.  A.  Saluzzo. 
The  most  excellent  Dr.  J.  F.  Insign.\ries, 

Envoy  Extraordinary  and  Minister  Plenipotentiary  of  the  Republic  of  Colombia. 

The  Colombian  minister  did  not  accept  the  proposed  action  of  the 
Government  of  Venezuela  as  an  earnest  of  sufficient  protection  to  the 
interests  of  liis  Government,  as  is  made  evident  by  his  reply,  which 
follows  : 

Legation  of  Colombia  at  Venezuei^v, 

Caracas,  June  6,  1890. 
Mr.  MiNnsTER:  I  have  the  honor  to  reply  to  the  note  of  your  excellency  of  the  3d  of  the 
present  month,  in  which  your  excellency  deigns  to  communicate  to  me  relative  to  the  confi- 
dential memorandum  of  August  9,  1888,  and  to  my  note  of  Januaiy'  24  last,  which  refers  to 
memoir  published  by  the  Company  General  of  the  Orinoco,  that  the  Government  of  your 
excellency  has  re-solved  to  demand  the  rescission  of  the  contract  made  with  the  said  company. 
I  shall  transmit  the  said  note  to  my  Government,  but  I  ought  to  manifest  to  your  excellency, 
as  I  am  doing  veiy  respectfully  by  means  of  the  present,  that  the  fact  which  it  communicates 
can  not  modify  in  any  way  the  state  of  the  claim  in  which  in  a  matter  so  grave  was  initiated 
bt>fore  the  Government  of  your  excellency  by  that  of  Colombia  in  a  note  of  October  28,  1887, 
to  which  there  has  yet  to-day  been  no  reply.  In  fact,  as  your  excellency  will  clearly  under- 
stand, in  spite  of  the  demand  of  rescission  proposed  and  while  waiting  for  it  to  lx>  decided 
favorabh"  the  Company  General  of  the  I'pper  Orinoco  will  continue  to  enjoy  the  contract  in 
virtue  of  which  the  Government  has  made  concessions  in  the  territories  of  the  I'pper  Orinoco 
and  Amazonas,  a  concession  which  the  said  company  extends  through  error  or  unjust  ly  to  the 
lands  which  on  this  side  are  in  litigation  lx'tweenColoml)ia  and  Venezuela  as  it  appeal's  with 
all  clearness  in  the  geographical  map  annexed  to  the  memoir  of  the  relation  which  has  set  in 
motion  the  claim  of  my  Government  without  formal  rectification  on  the  part  of  the  Govern- 
ment of  Venezuela. 


340  COMPANY    GENERAL    OF    THE    ORIN<K(>    CASE. 

î'avornl)lt'  as  the  sontcnco  may  1h'  to  the  Governnu'nt  of  \'eiiezuela  there  will  still  exist 
powerful  reasons  of  equilv  and  justice  with  which  the  Goveriuiient  of  Colombia  has  solicited 
the  said  rectification  because  this  act  is  notoriously  in  violation  of  tlie  treaty  of  arbitration 
of  September  14,  1881,  by  which  the  two  nations  submitted  their  differences  with  refrard  to 
the  frontiers  to  the  decision  of  the  Goveniment  of  Spain.  Consequently  it  is  my  duty  to 
insist,  as  I  am  doing,  with  the  greatest  respect,  l)efore  the  Govenuiient  of  your  excellency 
for  the  said  claim  of  my  Government,  reproducing  to  this  effect  the  contents  of  the  note  of 
October  28,  1887,  mentioned,  which  was  the  origin  of  my  memorandum  of  August  9,  1888, 
and  of  my  note  of  Jainiary  24  of  the  present  year. 

I  profit,  witli  plea-sure,  from  this  occasion,  etc.- 

(Signed)  J-  K.  Insignaries. 

To  Doctor  SoMZZo, 

Minister  of  Foreign  Relation.^  of  the  United  States  of  Venezuela. 

Eleven  days  prior  to  the  date  of  the  suit  for  rescission  the  minister 
of  the  interior  at  Caracas  issued  a  statement  authorizing;  the  propri- 
etors of  sarrapia  and  other  natural  products  in  the  Federal  Territories 
Upper  Orinoco  and  Amazonas  to  export  them  freely  on  i^aying  the 
same  duties  as  the  company.  During  the  same  month  the  agent  of 
the  company  at  San  Fernando  de  Atabapo  and  the  engineer  of  the 
Naroa  were  threatened  with  death  and  were  forced  to  take  refuge  at 
the  home  of  a  habitant.  Frightened  by  the  conditions  surroumling 
them,  they  declared  they  could  no  longer  remain  on  the  upper  river 
and  asked  to  be  relieved. 

The  4th  of  June  Governor  d'Aubeterre  left  liis  capital,  descended 
the  river,  and  arrived  at  Ciudad  Bolívar  June  27.  The  day  of  his 
departure  from  his  capital  he  sent  a  long  telegram  to  the  Government 
at  Caracas,  stating  that  the  company  did  not  have  funds  wherewith 
to  pay  for  the  india  rubber  which  was  gathered  and  tlemanileil  that 
authority  be  given  to  those  who  possessed  this  ]iroduct  tt)  ex])ort  it 
directly  either  by  way  of  Ciudad  Bolívar  or  through  the  custom- 
house at  San  Carlos.  The  custom-house  of  San  Carlos  had  been 
closed  by  the  Government  since  1886  and  had  never  been  openeil 
for  the  use  of  the  company,  thus  compelling  it  to  use  the  Orinoco 
exclusively  for  the  shipment  of  the  products  obtained  by  it. 

On  the  de])arture  of  Mr.  d'Aubeterre  from  San  Fernando  de  Ata- 
bapo Mr.  Ilemy  Page  became  governor  pro  tempore.  June  16,  18!)(), 
upon  his  own  authority,  he  issued  a  decree  which  annulled  the  con- 
tract of  December  17,  1885,  and  he  sent  Valentin  Perez  and  Sinforiano 
Orosco  to  Caracas  with  this  decree  to  obtain  for  it  the  approval  of  the 
Government.  lie  based  his  action  upon  tlic  anticipated  damages 
which  the  agents  of  the  company  might  cause  the  inhabitants  and 
that  through  them  the  j)ublic  order  might  1)0  endangered.  At  this 
time  there  were  three  agents  of  the  (•<)ni]):iny  in  rpj)er  Orinoco.  They 
were  Messrs.  Calvaras  and  Xiuy  at  vSan  Fernando  de  Atabapo  and 
Mr.  Oudiirl  al  San  (  "ailo^. 


oriNION    OK    THK    UMIMKK.  841 

The  Government  decided  not  to  approve  of  the  decree  of  June  16, 
issued  by  pro  tempore  Governor  Pa<i;e,  ami  on  Au^iust  S,  1S90,  lliere 
was  issued  the  following;: 

The  President  of  the  Republic: 

Whereas  tlie  decree  rendered  l)y  the  governor  ad  interim  of  the  Federal  Territories,  Upper 
Orinoco  and  Amazonas,  of  June  IG  last,  in  wiiich  lie  declares  the  caducity  of  the  contracl 
passed  by  the  Federal  executive  with  Mr.  Miguel  Tejera  for  the  exploitation  of  all  the  mineral 
and  vegetable  productions  of  this  Territory  and  of  which  (contract)  the  Company  General  of 
the  Orinoco  is  the  cessionary;  and  whereas,  also,  the  demand  which  the  inhabitants  of  the 
same  Territory  addressed  to  the  said  official,  in  which  they  set  forth  the  prejudices,  for  their 
own  interests  and  for  the  maintenance  of  the  public  order  in  these  large  and  rich  regions, 
caused  by  the  acts  of  the  agents  of  the  company  cessionary,  conjointly  with  the  acts  of 
adhesion  of  the  municipal  councils  of  San  Fernando  de  Atabapo  and  of  that  of  La  Urbana,  to 
the  manifestations  made  l)y  the  population:  and 

Considering: 

1.  That  the  Federal  executive  can  not  give  his  approbation  to  the  said  decree  of  the 
governor  of  the  Upper  Orinoco  and  Amazonas,  inasmuch  as  this  official  by  such  an  act  has 
exercised  a  function  which  is  attributed  by  the  constitution  and  the  laws  to  the  Federal 
power; 

2.  That  the  Federal  executive  has  already  submitted  to  the  high  Federal  court,  through 
the  agency  of  the  fiscal  nat  onal  de  hacienda  the  lesc'ssion,  not  only  of  the  contract  passed 
with  Mr  Miguel  Tejera,  but  also  of  that  passed  with  Mr.  Delort  for  the  exploitation  of  the 
sarrapia  (feve  tonka),  basing  his  action  upon  the  fact  that  the  company  cessionary  has  not 
accomplished  on  its  part  the  obligations  to  which  it  is  bound  by  these  contracts  of  establish- 
ing steam  navigation  upon  the  Upper  Orinoco,  of  constmcting  railioads,  of  introducing 
immigrants  to  found  colonies;  of  building  churches,  hospitals,  barracks  for  the  police;  of 
establishing  the  postal  service,  and  of  founding  missions; 

3.  That  by  the  "documentación  aducida"  (allegations  furnished  by  the  documents)  it  is 
demonstrated  that  the  acts  of  the  agents  of  the  Company  General  of  the  Orinoco,  aside  from 
the  grave  prejudices  which  they  are  causing  to  the  inhabitants  of  the  Territories  Upper  Ori- 
noco and  Amazonas  in  their  legitimate  interests,  are  going  so  far  as  to  threaten  the  public 
security  which  the  executive  is  bound  to  protect  with  the  vote  of  the  Federal  council: 

Be  it  decreed: 

Article  1.  The  decree  of  June  16  of  the  current  year  rendered  l)v  the  governor  ad  interim 
of  the  Federal  Territories  Upper  Orinoco  and  Amazonas  is  d'saoproved,  becomes  null,  and 
will  produce  no  effect. 

Art.  2.  The  Federal  executive  will  dictate  through  the  agency  of  the  ministei-s  of  the 
interior,  of  hacienda,  and  of  fomento,  in  all  the  extension  necessar}',  the  provisions  tending 
to  satisfy  the  just  demands  made  by  the  inhabitants  of  the  Upper  Orinoco  and  Amazonas, 
while  waiting  for  the  high  Federal  court  to  decide  whatever  is  just  in  the  demand  brought 
before  it. 

Given,  signed  by  my  hand,  marked  with  the  great  national  seal,  and  countersigned  by  the 
ministers  of  the  interior,  of  hacienda,  and  of  fomento,  in  the  Federal  palace  a(  Caracas,  August 
8,  1890. 

K.  Andlez.x  Palacio. 
Countersigned:  S.  Casanas. 

Vincent  Coronado, 

Minister  of  Hacienda. 
Francisco  Balaelo, 

Alinisier  of  Fomento. 


342  COMPANY  (íknkkal  of  the  <»kin(>('o  task. 

On  the  next  day  llic  minister  of  interior  issued  the  administrative 
order,  No.  Kill,  as  follows: 

(Administrative  ortici.  No.  1011.] 

C.\R.\CAS,  !)th  of  August,  IftOO.     (27  and  32.) 

C'lTiZE.s  Governor  of  the  Feder.vl  Territory  Am.vzo.nas:  Accompanyinfi  I  st-ivd  to  you 
a  copy  of  No.  5016  of  tlie  Ofliciul  Gazette,  containing  a  decree  issued  by  tlie  President  of 
the  Republic  with  date  of  yesterday,  in  which  he  annulled  that  which  the  Government  pro- 
nounced on  the  17th  of  last  June,  relative  to  declaring  the  defimct  condition  of  the  contract 
celebrated  by  the  national  executive  with  the  Señor  Miguel  Tejera,  of  which  the  cessionary 
is  the  General  Company  of  the  Orinoco,  remaining  conseciuently  null  and  without  any 
value  or  effect,  and  in  which  it  wa.s  decided  (or  determined)  that  until  the  high  Federal 
court  may  decide  what  may  be  justice  the  national  executive  will  dictate,  through  means 
of  this  ministry  and  those  of  hacienda  and  fomento,  to  all  necessary  length,  the  arrange- 
ments (orders)  necessary  for  satisfying  the  just  exigencies  manifested  1)V  the  inhabitants 
of  that  Territory. 

Consequently  you  will  please  not  to  give  any  permission  to  the  agents  of  the  expressed 
company  to  continue  exploiting  the  products  of  that  territory  and  give  large  franchises  in 
order  that  the  inhabitants  can  without  hindrances  undertake  the  work  of  exploitation  upon 
the  products  referred  to. 

God  and  federation. 

S.  Casanas. 

It  will  be  observed  that  the  provision  in  the  decree  of  Aiijiust  S 
that  the  national  executive  would  act  throufih  the  ministries  therein 
named  took  effect  in  the  last  paragraph  of  the  above  order. 

On  the  29th  of  August  the  minister  of  the  interior  sent  a  telegram 
of  advice  to  the  governor  of  the  Federal  Territories  Upper  Orinoco 
and  Amazonas  through  Mr.  Valentin  Perez  of  the  following  tenor: 

Caracas,  29th  August,  1890. 
Señor  Valentin  Perez: 

The  governor  ought  to  enforce  the  decree  suspending  the  prerogatives  of  the  Alto  Orinoco 
and  Amazonas. 

It  can  not  continue  exploiting  tlic  natural  products  of  the  Territories  nor  collect  reward 
upon  those  which  it  expected  to  obtain  by  its  proper  work. 

S.  Casanas. 

By  a  letter  of  later  date  he  again  brought  the  attention  of  the  citi- 
zens of  those  territories  to  the  situation,  as  existing  under  the  decrees 
of  August  8  and  9,  l)y  means  of  a  letter,  which  is  as  follows: 

Caracas,  September  10,  ISíHl 
Señor  Sonforia.no  Orosco: 

By  resolution  of  the  ministry  of  hacienda,  dated  May  27,  ISIK),  it  is  ordenad  that  the 
owners  of  sarrapia  and  other  natural  products  which  the  company  exports,  to  which  you 
refer  in  a  telegram  of  day  before  yesterday,  can  ex|)()rt  them  freely,  paying  the  same  iluties 
as  said  company,  and  by  the  decree  of  the  Sth  of  August  it  prohibits  to  the  company  the 
absolute  (unconditional)  ex|)ortations  and  exploitations  which  it  had  of  tho.se  products,  all 
which  ordei-s  were  transmitted  to  the  custom-house  opportunely  b}'  the  ministers  of  hacienda 
and  of  fomento  in  order  for  their  fullillment.  You  and  the  rest  are  interested  in  this  matter 
on  account  of  the  last  urgent  ordei-s. 

God  and  federation. 

S.  Casanas. 


OPIKION    OF   THE    UMPIKK.  343 

Having  followed  the  process  of  the  high  Federal  court  from  the 
inception  of  the  suit  for  rescission,  May  28,  1890,  to  the  sentence  of 
the  high  Federal  court,  given  October  14,  1901,  having  traced  the 
progress  of  the  administrative  department  in  its  relation  to  the  com- 
pany to  September,  1890,  it  is  well  to  examine  into  the  condition 
and  histor\  of  the  Company  General  of  the  Upper  Orinoco  during 
the  same  time. 

May  30,  1890,  the  same  day  on  which  Mr.  Fiat  was  summoned  to 
appear  before  the  high  Federal  court  to  answer  to  the  suit  of  the 
national  Government  for  rescission  of  both  concessions,  the  Company 
General  of  the  Orinoco  met  in  a  shareholders'  general  meeting  at 
Paris,  in  which  meeting  a  resolution  was  passed  for  the  purpose  of 
converting  the  company  into  an  English  company  with  the  name 
of  Orinoco  Exportation  and  Trading  C^ompany,  which  meeting  like- 
wise determined  to  dissolve  and  wind  up  the  Company  General  of 
the  Orinoco  and  appoint  a  liquidator. 

It  is  said  in  behalf  of  the  company  by  the  liquidator  in  a  memorial 
of  date  December  5,  1895,  that — 

the  board  of  directors  had  many  debtors  and  they  hesitated  therefore  to  collect  the  harvest 
of  1890,  but  3'ielding  to  the  representations  of  their  agents  they  furnished  the  necessary 
funds  in  agreement  with  a  Liverpool  firm,  who  sent  out  their  special  agent,  Mr.  Staedelli. 

The  position  of  the  company  in  Paris  was  very  painful,  as  its  credit  had  been  totally 
exhausted.  All  efforts  made  in  France  seemed  to  be  of  no  avail,  while  in  England  confidence 
was  not  lost  and  it  was  possible  to  go  on  there  with  the  business.  The  board  of  directors 
therefore  wilHngly  considered  a  proposition  from  England  for  the  constitution  of  a  company 
in  London  to  which  all  the  assets,  contracts,  material,  works,  etc.,  of  the  Company  General 
of  the  Orinoco  would  be  transferred. 

It  is  ascertained  that  the  liabilities  of  the  company,  as  stated  by 
it,  were  on  May  30,  1890,  as  follows: 

Francs. 

To  the  shareholders 1,  500, 000. 00 

To  the  Society  (La  Monnaie ) 722,  851.  56 

La  Banque  de  Consignations 236,  3.56. 00 

Mr.  Alfred  Chauvolot 191,  176. 00 

Mr.  Eugene  Ferminhac. . .  ' 63,  (XX).  00 

Mr.  Louis  Roux 13,  059.  55 

Mr.  Th.  Delort 14,  641.  26 

Total 2,  741, 084. 37 

It  is  an  agreed  fact  that  the  company  had  no  knowledge  or  intima- 
tion of  the  pending  suit  in  Caracas  at  the  time  of  this  meeting  of  May 
30,  1890,  and  that  its  proceedings  on  that  day  were  without  any  rela- 
tion thereto  and  not  in  any  way  influenced  thereby.  June  2.3,  1890, 
at  a  general  meeting  of  the  shareholders  of  the  Company  General  of 
the  Orinoco  at  Paris,  a  lic|uidator  was  appointed,  and  in  the  third 
resolution  of  the  shareholders  his  powers  were  defined  as  follows: 

Confers  upon  the  liquidator  its  full  powers  to  the  effect  of  realizing  the  social  assets  by 
way  of  fusion  or  union  in  another  French  or  foreign  society,  existing  or  to  be  created,  to 


;U4  <(».MrANï  <}?:nekal  <>k  thk  orinoco  case. 

receive  whether  in  specie  or  obligations  or  stock,  free  or  not  free,  to  liave  recourse  to  actions 
and  dehberations  wliich  shall  have  for  their  object  the  formation  and  constitution  of  a  new 
society  to  sell  tlie  stock  or  obligations  received  until  the  concurrence  of  the  sums  necessary' 
for  the  payment  of  the  liabilities  and  to  turn  over  the  surplus  in  confonnity  with  the  statutes. 
Also  to  take  all  the  measures  possible  for  the  continuation  of  the  business  until  the  realiza- 
tion of  the  assets,  to  exercise  in  this  regard  all  the  powers  conferred  upon  the  council  of  admin- 
istration by  article  22  of  the  statutes. 

Further,  to  negotiate  and  conclude  all  contracts,  whether  for  the  purchase  and  sale  of  the 
merchandise  and  other  objects  or  for  the  exploitation  of  all  or  part  of  the  .social  capital  by 
lease  or  otherwise,  by  forfeit  or  by  means  of  fines  or  parts  of  the  lM>nefits;  to  borrow  all  sums 
necessary  for  meeting  the  engagements  of  the  society;  to  confer  all  guaranties  upon  the 
lenders — in  a  word,  to  do  all  which  circumstances  require  in  the  interest  of  the  society,  tlie 
powers  above  mentioned  not  being  limited. 

Tlie  oreneral  meetino;  of  the  sharelidlders  of  the  company  M'as  held 
December  27,  1890.  From  the  liquidator's  report  made  to  this  meet- 
ing it  was  learned  that  the  approval  given  by  the  shareholders  at  their 
meeting  of  June  23  to  an  arrangement  that  would  merge  the  Comi)any 
General  of  the  Orinoco  in  a  new  English  company,  as  is  previously 
stated  herein,  was  so  far  completed  on  June  7,  1890,  that  an  agreement 
had  been  signed  b}'  the  company  with  the  "Gold  Trust  and  Invest- 
ment Company"  providing  for  such  transfer.  Following  the  approval 
of  the  shareholders,  as  above  stated,  the  new  company,  the  Orinoco 
Exploration  and  Trading  Company,  was  formed  and  registered  in 
England.  Owing,  however,  to  the  political  relations  then  existing 
between  England  and  Venezuela  over  the  boundary  line  between  the 
latter  country  and  British  Guiana,  involving,  among  other  (piestions, 
claims  on  the  part  of  England  in  connection  with  the  outlets  of  the 
Orinoco,  the  Government  of  Venezuela,  from  reasons  of  state,  as  it  is 
understood — 

absolutelj'  refused  to  acknowledge  this  new  company  and  to  transfer  to  the  same  the  rights 
and  concessions  of  the  French  companj*. 

This  cjuotation  is  taken  from  the  report  of  the  liquidator  at  the 
shan^holders'  meeting  of  December  27.  1890. 
He  goes  on  to  sa}'  in  his  report  : 

It  was  but  very  late  that  I  was  made  acquainted  with  the  cau.^es  %\hich  were  opposed  to 
the  formation  of  the  English  company,  and  this  delay  was  the  cause  of  my  losing  very  valu- 
able time;  but  the  nunnent  I  knew  of  these  causes  1  took  steps  conducive  to  a  result  which 
might  save  our  company. 

I  have  appealed  for  assistance  to  the  former  directors  of  the  company  who  are  now  nego- 
tiating with  the  Government  of  Venezuela,  and  iiave  looked  towarti  another  .solution  of  the 
problem,  wliich  is  the  only  means  of  assuring  the  future  of  the  company,  vi/,.  the  recon- 
struction of  the  present  company  with  an  increase  of  fresh  capital  in  cash. 

Following  the  rej)ort  of  the  li([uidator  the  duiirman  of  the  nictning 
announced — 

That  owing  to  the  facts  which  had  just  been  mentioned  by  the  iiiniidator  the  i)i)-\i-d  of 
directors  had  sent  to  Caracas  Mr.  licit  hier,  who  had  been  a  former  agent  of  tlie  company, 
with  the  following  mission: 


OPINION    OF    THK    UMPIKK.  345 

To  obtain  from  the  GovcmmcMit  the  revision  of  th:^  old  eoncessions,  whieh  evidently  con- 
tained clauses  wliich  were  einhurrassini^  to  the  Government ,  as  well  as  to  the  com|)aiiy.  Mr. 
Berthier  Wius,  besides,  to  make  sure  tliat  the  Government  would  make  no  dilhculties  for  the 
transfer  to  a  new  company  (provided  this  he  not  an  Knsilish  company)  of  all  the  rifihts  and 
concessions  accruing  from  the  new  contract.  The  double  purpose  of  Mr.  Berthier's  mission 
has  been  obtained;  the  terms  of  the  new  contract  propcsed  have  been  accepted,  and  one  of 
its  clauses  will  allow  the  transfer  to  a  new  company.  The  new  company  will  lie  French- 
Belgian,  formed  with  the  a-ssistance  of  a  powei  ful  Belgian  group. 

The  chairman  then  read  the  draft  of  the  articles  of  concession  of  the 
French-Belgian  company  information. 

At  some  time  succeedino^  October  1 1, 1890,  on  which  day  he  appeared 
in  the  hio;h  Federal  court  as  the  attorney  of  the  company,  Mr.  Andrés 
.Fiat  resijjned  his  position  as  such  attorney,  and  Mr.  Bernabé  Planas 
was  appointed,  but  he  declined  the  appointment. 

On  the  advice  of  Mr.  Delort  it  was  then  determined,  as  above  stated, 
to  send  Mr.  Berthier  to  Caracas  as  a  special  apjent  of  the  company,  he 
being  well  accj[uainted  with  all  details  of  the  matter.  He  arrived  in 
Caracas  October  25,  1890,  and  remained  imtil  July,  1891. 

His  mission,  as  disclosed  by  the  statement  of  the  chairman  above 
f^uoted,  was  to  be  confined  to  negotiations  with  the  Government 
looking  to  a  discontinuance  of  its  suit  without  costs  to  the  defendant, 
a  relinquishment  on  the  part  of  the  company  of  the  concessions  it 
held,  the  Government  to  grant  to  the  company  for  a  period  of  twenty- 
five  years  the  exclusive  right  of  steam  navigation  on  the  watersvays  of 
the  Federal  Territories  Upper  Orinoco  and  Amazonas  and  in  the  rivers 
Caura  and  Cuchiroro,  during  which  period  the  Government  would  not 
grant  a  similar  concession  to  any  other  person  or  comj^any.  This 
arrangement  was  put  into  writing;  and  in  article  10  of  this  agreement 
there  is  found  the  following: 

This  contract  can  be  transferred  to  any  other  party  or  company  with  the  previous  assent 
of  the  Federal  Government,  without  which  formality  that  transfer  can  not  be  effected. 
However,  as  an  exception,  this  contract  can  be  transferred  in  part  or  in  whole  to  the  Belgian 
company  called  Compagnie  Internationale  des  Caoutchoucs  et  Produits  Naturels  au  Bassin 
de  rOrénoque. 

In  another  part  of  the  agreement  the  company  was  accorded  the 
right  to  construct  within  the  Territories  mentioned  such  railways  and 
telegraph  lines  as  it  might  think  convenient  or  valuable. 

Through  misadventures  this  agreement  was  not  effected. 

In  the  meantime,  anticipating  success  in  the  above-mentioned 
negotiations,  the  Belgian  company  had  been  constituted  tt)  take  oAcr 
the  new  contract.  In  the  end  there  was  no  new  contract  and  the 
Belgian  company  did  not  become  effective.  The  departure  of  Mr. 
Berthier  for  Paris  July,  1891 ,  left  no  attorney  to  represent  the  company 
before  the  high  Federal  court,  and  it  does  not  appear  that  another  was 
appointed. 

March  17,  1891,  His  Majesty  the  King  of  Spain  published  his  award 
settling  the  boundary  dispute  between  the  Republics  of  Venezuela 


346  COMPANY    (lENKKAL    <»K    THE    ORINOCO    CASE. 

and  Colombia.  It  was  unfavorable  to  the  first-named  country  and 
sustained  the  contention  of  the  latter.  It  gave  to  Colombia  more  than 
one-half  of  the  area  of  the  Federal  Territories  Upper  Orinoco  and  Ama- 
zonas as  claimed  by  Venezuela  up  to  the  date  of  the  ro^^al  award.  It 
made  the  Orinoco  south  of  its  junction  with  the  Meta,  the  ('asi(|uiare. 
and  the  Rio  Nec^ro  the  line  lietween  the  two  countries,  g^iving  both  of 
them  ec[ual  rio;hts  therein.  It  removed  from  the  control  of  Venezuela 
tlie  Rio  Guaviare,  Vichada,  Inrida,  Atabapo,  and  Guainia.  Of  these 
the  last  four  were  wholly  and  the  first  was  lar«iely  in  the  territory  of 
Venezuela,  as  claimed  by  that  Government  in  her  contention  before 
the  royal  arbitrator  and  as  it  appears  from  its  official  maps.  Similarly 
the  maps  current  in  the  United  States  of  America  prior  to  1891 
allotted  this  territory  to  Venezuela.  Under  the  rectified  boundary 
these  rivers  are  wholly  within  Colombian  territory. 

On  the  territory  thus  removed  from  the  dominion  of  ^'enezuela  the 
company  had  established  on  the  left  bank  of  the  Vichada  an  hato,  where 
had  been  installed  800  cows,  12  bulls,  mules,  and  donkeys,  and  had 
there  prepared  lands  for  cultivation;  on  the  left  bank  of  the  Guaviare 
it  had  begun  the  cultivation  of  sugar  cane,  had  built  a  sugar  house  and 
a  still;  on  the  left  bank  of  the  latter  river  and  also  of  the  Orinoco  had 
been  begun  improvements  of  the  cacao.  Of  these  enterprises  the 
Government  of  Venezuela  had  received  due  and  seasonable  notice. 
The  compan}^  considered  a  valuable  part  of  its  concession  to  be  the 
marble  deposits  on  the  Inrida,  the  minerals  in  the  region  of  the 
Guaviare,  and  above  all  the  great  savannas  west  of  the  Meta,  regarded 
as  xerj  valuable  for  cattle  raising. 

It  is  now  time  to  bring  forward  the  decree  of  rescission  pronounced 
by  the  high  Federal  court.  The  amendment,  previously  named, 
which  was  made  by  the  fiscal  nacional  de  hacienda  of  June  19  was  to 
the  effect  that  examination  of  the  documents  relating  to  the  articles 
imported  by  the  Company  General  of  the  Orinoco  disclosed  that  the 
unpaid  duties  on  these  articles  by  reason  of  the  company's  exemption 
amounted  to  40,048.62  bolivars,  which  sum  is  demanded  in  damages 
as  a  substitute  for  600,000  bolivars,  which  appeared  in  the  original 
petition. 

The  answer  which  was  made  by  Andrés  Fiat  to  the  suit  in  question 
on  July  22,  1890,  is  in  substance  and  effect  summarized  in  that  portion 
of  the  decree  which  is  herein  quoted,  and  therefore  need  not  be  set 
forth  here. 

Upon  the  issues  formed  and  upon  the  testimony  adduced  before  the 
high  Federal  court  it  proceeded  in  due  course  to  the  consideration  and 
determination  of  the  cause  and  to  the  pronouncing  of  its  sentence. 

The  decree  of  the  high  Federal  court  is  a  carefully  considered  and 
carefidly  written  document  of  many  ])ages,  but  that  which  is  essential 
to  the  questions  here  involved  can  be  easily  abbreviated.     After 


OPINION    OF    THE    UMHIKK.  347 

having  brought  into  the  decree  the  essential  facts  connected  with  the 
process  and  proceedings  anterior  to  the  setthng  of  its  decision  the 
court  says: 

6.  Tliat  it  ivppoars  from  the  documents  that  the  Government  has  fulfilled  on  its  part  all 
the  obligations  wliich  the  contracts  ¡already  mentioned  imposed  upon  it. 

And  considerinji  that  from  the  documents  result  the  proof  of  the  failure  of  accomplishment 
by  the  Company  General  of  the  Orinoco  of  the  obligations,  1  2,  8,  4,  ó,  (5,  7,  and  9  of  the  first 
contract,  and  also  that  it  has  not  carried  out  the  stipulations  3, 4,  and  5  of  the  second  contract, 
the  Govenunent  having  brought  to  an  end  the  perfect  execution  of  the  said  contract;  that 
the  representative  of  the  said  company  has  alleged,  in  reply  to  the  demand  of  the  present 
process,  that  "  the  facts  on  which  they  pretend  to  base  themselves  are  not  certain,  or  are 
inexact,  and  those  which  really  can  be  established  prove  that  the  company  has  fulfilled  with 
extraordinary  efïort  and  diligence  and  with  enormous  expenses  up  to  the  point  where  there 
have  appeared  insurmountable  difficulties,  which  constitute /o/re  majeure,  or  acts  of  author- 
ities dependent  upon  the  Government  itself  and  contrary  to  the  stipulations  of  the  contract." 

That  these  exceptions  offered  by  the  company  do  not  appear  to  be  proven  by  the  docu- 
ments of  the  present  process,  and  that  finally  the  lack  of  accomplishment  on  the  part  of  the 
company  of  the  two  contracts  referred  to  is  an  evident  fact  being  given  that  in  the  present 
case  are  applicable  the  provisions  of  article  1149  of  the  civil  code,  in  virtue  of  which  the 
omission  in  the  accomplishment  of  any  one  of  the  requirements  of  a  contract  is  equivalent 
to  its  absolute  inexécution  when  there  is  no  agreement  to  the  contrary,  and  it  has  not  been 
alleged  nor  proven  that  any  compact  of  this  nature  exists;  that  article  1110  of  the  civil  code 
establishes  that  "  the  resultory  condition  is  always  implicit  in  bilateral  contracts  in  the  case 
where  one  of  the  two  contracting  parties  does  not  accomplish  its  ol)]igation;"  that  as  for  the 
resolution,  it  has  the  effect  which  article  1256  of  the  same  code  provides;  that  article  1163 
of  the  said  code  imposes  the  payment  of  damages  and  prejudices  to  the  debtor  who  does  not 
execute  his  obligation,  damages,  and  prejudices  which  in  the  present  case  amount  to  40,048.62 
bolivars,  according  to  the  liquidation  produced  by  the  demander,  a  sum  to  which  the  claim 
of  the  treasury  on  this  subject  is  limited.  For  such  reasons  the  high  Federal  court,  admin- 
istering justice  in  the  name  of  the  Republic  and  by  authority  of  the  law,  declares  to  allow 
the  chxim  presented  in  the  present  process  by  the  fiscal  nacional  de  hacienda  against  the 
Company  General  of  the  Orinoco,  and  consequently  is  declared  the  resolution  of  the  con- 
tracts of  May  24.  1886,  and  May  31,  1887,  passed  by  the  National  Government  with  Messrs. 
Tejera  and  Dclort,  respectively,  of  which  the  company  named  is  cessionary. 

The  Company  General  of  the  Orinoco  is  sentenced  to  pay  to  the  National  Government  the 
sum  of  40,048.62  bolivars  for  damages  and  prejudices  caused  to  the  nation  from  the  non- 
accomplishment  on  the  part  of  the  company  of  the  contracts  named,  together  with  the 
expenses  of  this  process. 

There  was  no  appearance  on  the  part  of  the  company  on  September 
29,  1891,  at  which  time  the  National  Government  was  properly  repre- 
sented and  was  heard  m  oral  pleading  before  the  court.  No  notice 
was  served  or  summons  made  upon  the  counsel  who  hail  appeared  in 
the  case  for  Mr.  Fiat.  Indeed,  since  he  was  attorney  of  the  company, 
and  they  were  his  counsel  only,  their  relation  to  the  company  and  to 
the  case  since  he  had  resigned,  their  right  to  appear  and  to  be  heard, 
or  the  duty  of  the  Government  to  have  them  cited  in,  had  such  a  duty 
rested  upon  the  Government  at  that  stage  of  the  cause,  is  in  none  of 
these  respects  verj^  clear  to  the  umpire.  There  was  no  attorney  of  the 
company  then  resident  in  Venezuela,  and  there  had  been  none  since 
July  previous,  but  whether  this  fact  was  known  to  the  Government 


348  (((Ml'ANV    (íKXKKAI,    of    the    ORINOCO    TASK. 

or  to  tlie  court  doos  not  appear.  The  evidence  of  two  witnesses 
adduced  l)y  the  company  is  referred  to  by  the  court  in  its  decree  as 
liaviny;  been  considered  l)y  it  in  coinin<^  to  its  linal  juil<];nient.  Aside 
from  this  evidence  the  court  was  not  assisted  by  the  company  in  any- 
way after  the  court  be<j:an  its  consideration  of  tlie  facts,  tlie  htw,  and 
the  equit}'  of  the  cause,  nor  were  the  interests  of  the  company  in  any- 
way subserved  or  protected  at  this  time  l)y  the  presence  in  court  of 
attorney  or  counsel.  In  a  very  few  (hiys  the  com])any  had  knowledjje 
of  the  action  of  tlie  court;  but  it  did  not  then  or  ever  take  any  steps  to 
be  heard  on  any  question  or  motion  proper  to  have  been  taken  on  its 
part  under  the  law  of  the  Republic  or  the  procedure  of  the  court. 
Neither  does  it  appear  from  the  attitude  of  the  company  toward  the 
suit  for  quite  a  period  prior  to  October  14.  1890,  and  for  years  there- 
after that  it  desired  to  be  heard  in  the  high  Federal  court  on  tlie  matter 
of  the  iinal  decree.  The  tenor  of  the  proceedings  of  the  company 
after  it  passed  into  licjuidation  is  clearly  that  it  depended,  not  on  a 
successfid  defense  to  the  suit,  but  solely  upon  negotiations  with  the 
Government  for  its  existence  and  prosperit3^  No  other  version  can 
be  given  to  the  acts,  declarations,  and  apparent  animus  of  its  mov- 
ing and  managing  spirits  and  agents. 

At  the  time  this  decree  was  passed  the  Company  General  of  the 
Orinoco  had  actually  brought  into  Venezuela  and  expended  in  and 
about  its  enterprise  tlie  sum  of  2,373,317.89  francs,  after  deducting 
from  the  total  expenses  the  sums  actually  received  for  products 
exported  under  its  concessions. 

Certain  conditions  of  the  Company  General  of  the  Orinoco  and  cer- 
tain administrative  acts  in  relation  to  it  will  now  be  considered. 

It  was  in  March,  1888,  that  the  company  took  possession  of  the 
lands  granted  by  Mr.  Vernet  and  formed  on  the  \'ichada  the  hato 
which  bore  the  name  of  Santa  Catalina.  It  was  here  that  the  cattle 
obtained  at  Buena  Vista  were  placed,  the  chief  purpcs?  of  thi-^  hato 
being  to  prepare  for  the  necessities  of  the  immigrants,  since  there  wj  s 
not  in  all  the  region  of  the  Maipures  so  much  as  one  single  animal  of 
the  cow  kind. 

The  minister  of  fomento  was  advised  of  the  establishment  of  the 
hato,  and  later  a  concession  of  lands  was  demamled  of  him  to  be  lo-ated 
on  the  Vichada  for  similar  purposes.  To  this  demand  there  was  no 
reply  by  the  Government. 

The  action  of  the  governors  of  the  Territories  Upper  Orinoco  and 
Amazonas^  and  of  persons  representatives  of  the  Federal  Government 
in  that  locality,  was  such  concerning  the  exploitation  and  ex])  )rtation 
of  the  natural  products  of  those  Territories,  which  were  exclusively  the 
property  of  the  company,  that  it  resulted  in  depriving  the  com])any 
of  any  benefits  of  its  concessions  for  the  year  ]<S9()  and  thereaft(>rwards, 
notwithstanding  adequate  jirovisions  had  been  made  by  the  company 


OPINION    OF    THE    UMPIRE.  349 

with  a  Liverpool  firm  to  furnish  the  re(}iiisite  ñinds  to  complete  the 
payment  for  those  products  and  the  a<;ent  of  the  iirni  had  been  sent 
out  to  Venezuela  for  that  purpose,  and  in  spite  of  the  fact  that  much 
of  the  india  rubber  had  been  harvested  by  means  of  advances  which 
the  company  had  made  aforetime. 

Mr.  ^^alentin  Perez,  the  trusted  representative  and  a<ient  of  the 
Government  at  San  Fernando  de  Atabapo  in  the  summer  and  early 
autumn  of  1890,  returned  to  his  home  in  La  ITrbana  late  in  that  year 
or  early  in  1891,  organized  an  armed  force  and  began  an  expedition  up 
the  river.  April  28,  1891,  he  attacked  the  steamer  Libertad,  at  the 
mouth  of  tlie  river  Meta,  with  firearms.  The  steamer  escaped  without 
loss  of  life  to  its  crew,  although  the  marks  of  man}"  bullets  were  found 
upon  the  boat.  The  doings  of  Perez  came  to  the  knowledge  of  the 
governor  at  San  Fernando  de  Atabapo,  who,  fearing  an  attack,  took 
away  the  valves  from  the  boiler  of  the  Meta  and  removed  diiierent 
l)arts  of  the  engine,  rendering  her  useless  should  she  fall  into  the  hands 
of  Perez,  but  it  had  a  similar  effect  upon  her  useftdness  and  vahie  to 
the  company. 

The  governor  also  took  by  main  force  the  arms  and  munitions  which 
the  company  had  a  lawful  right  to  kee])  at  its  agencies  and  wliich  were 
necessar}'  for  its  ])rotection  in  that  ])art  of  the  country.  Perez  took 
])ossession,  consecutively,  of  Atures,  Maipures,  and  San  Fernando  de 
Atabapo,  and  seized  everything  of  value  which  lay  in  his  way;  and, 
ft'om  his  home  at  La  Urbana  to  the  capital  of  the  Territories  he  })umed 
all  the  wood  sheds  of  the  company,  some  seventeen  in  number,  includ- 
ing the  ñiel  contained  therein.  About  this  time  Mr.  Calvaras,  agent  of 
tlie  company  at  San  Fernando  de  Atabapo,  attempting  to  escape  to 
Ciudad  Bolívar,  died  at  Maipures  of  fatigue  and  privation.  Mr.  Mary, 
another  agent,  descended  the  river  to  Ciudad  Bolívar.  Mr.  Oudart 
tried  to  escape  ft'oni  San  Carlos,  but  he  was  attached  and  ro])bed.  He 
gathered  together  a  few  men  and  attacked  the  troops  of  Perez  by 
night,  seized  about  one-fourth  of  his  india  rubber,  threw  it  into  boats, 
and  went  to  Brazil.  This  practically  ended  the  exploitation  of  these 
Territories  b}^  the  Companj^  General  of  the  Orinoco. 

Perez  captured  the  governor  and  detained  him  as  a  prisoner.  To 
reestablish  order  in  the  Territories  the  Government  sent  troops  from 
Ciudad  Bolívar  to  San  Fernando  de  Atabapo.  To  accomplish  this,  it 
requisitioned  the  Libertad  to  carry  its  soldiers  to  Atures.  Above  the 
ra])ids  the  Government  used  the  steamers  of  the  enterprise  to  take  the 
soldiers  to  the  capital  of  the  Territories.  At  Maipures  the  troops  were 
fed  with  meat  from  the  cattle  of  the  company.  For  the  service  of  the 
Libertad  the  company  received  2,000  bolivars,  but  for  the  rest  nothing. 

The  years  1892  and  1893  witnessed  the  successful  revolution  of  Gen. 
Joaquin  Crespo.  As  a  consequence,  public  and  private  business  and 
the  processes  of  the  courts  and  the  administration  of  the  Government 


350  COMPANY    (GENERAL    «»F    THE    ORINOCO    CASE. 

were  seriously  intciTuptod  and  obstriicted.  It  was  not  until  February 
20,  1894,  that  General  Crespo  was  named  constitutional  President. 
•  The  matters  of  the  Company  General  had  sufTerod  seriously  through 
tliis  revolutionary  crisis.  Xo  execution  had  been  issued  for  the  dam- 
ages and  costs  awarded  the  Government  in  its  suit  of  rescission  against 
the  company.  March  S.  1S93,  the  new  trovernor  of  the  Federal  Ter- 
ritories, Gen.  Juan  Anselmo,  issued  a  decree  of  suquestration  against 
the  property  of  the  company  in  the  Territory  of  Upper  Orinoco,  to 
make  effective  the  judgment  of  October  14,  ISO  1,  by  recovering  the 
amount  thereof;  and  to  that  end  he  asserted  the  lien  of  the  Government 
upon  both  the  movable  and  the  immovable  property  of  the  company, 
whether  in  its  possession  or  in  the  hands  of  those  who  had  appro))ri- 
ated  it  to  their  owii  use,  appointed  a  depositary,  and  allowed  thirty 
days  during  which  time  all  persons  who  had  anything  belonging  to  the 
Company  General  of  the  Orinoco  were  to  bring  it  to  the  depositary  or 
to  pay  liini  the  value  of  the  same.  After  this  delà}'  of  thirty  days, 
judicial  proceedings  were  to  be  taken  conformable  to  the  laws  against 
delinquents. 

This  decree  was  disaffirmed  by  the  high  Federal  court  because  no 
such  power  was  vouchsafed  the  governor  by  the  decree  which  created 
and  organized  the  Territory.  The  court  held  that  this  could  issue 
solely  through  the  judiciary  department,  citing  articles  29<S,  299,  .300, 
301,  302, 303,  304,  305,  and  306  of  the  Code  of  Civil  Procedure.  It  goes 
on  to  say  : 

That  which  the  governor  ought  to  have  done  was  to  bring  to  the  knowledge  of  the  judges 
of  the  locaUty  of  the  circumspection  of  his  command,  in  which  were  the  interests  of  the  com- 
pany, the  complaints  of  the  interested  parties,  in  order  that  according  to  the  reasons  alleged 
their  acquired  rights  might  be  guaranteed,  etc. 

It  resulted  that  all  of  the  Company's  property  which  at  that  time 
could  be  assembled  in  that  Territory  was  sold  at  a  nominal  figure. 

July  10,  1902,  the  liquidators  of  the  Company  General  of  the  Orinoco 
addressed  a  memorial  to  the  minister  of  foreign  affairs  of  France  in 
which  they  stated  their  case  as  follows  : 

That  in  consequence  of  the  sentence  given  by  the  high  Federal  court  Octolier  14,  ISOl, 
without  the  appearing  in  court  of  the  plaintiff  company  the  creditoi-s  of  the  said  company 
wen^  obliged  to  apply  to  the  li<iuidators  for  the  vindication  of  their  rights  against  the  Gov- 
ernment of  Venezuela. 

This  was  followed  by  a  statement  of  their  claim  in  detail. 

In  1.S94,  shortly  after  General  Crespo  became  the  constitutional 
President  of  the  Ilej)ul)lic,  Mr.  Theodore'  Delort  came  to  (\iracas  in  the 
interest  of  the  litpiidators  in  an  eli'ort  to  adjust  the  matters  of  diiVer- 
ence  then  existing.  While  at  Caracas  he  addressed  a  coiiuiumication, 
in  the  nature  of  a  resume,  to  the  minister  of  foreign  affairs  of  Vene- 
zuela.    Among  other  things  of  value  is  foimd  t  his  : 

The  honor  and  slanthng  of  (he  nieMil)ers  who  form  I  his  enterprise,  can-  credit  being  \mder- 
stoixi  and  our  proceedings  correct ,  are  the  reasons  which  compel  me  to  net  tivday  in  the  près- 


OPINION    OF    THE    UMPIRE.  351 

ent  claim,  not  to  regain  our  capital  lost,  if  it  is  understood  that  the  Venezuelan  Govern- 
ment wishes  to  render  us  justice,  but  to  take  into  consideration  the  said  credits  and  that  we 
may  be  able  to  fulfill  our  engagements  honoral)ly. 

Earlier  in  the  communication  Mr.  Delort  had  stated  the  indebted- 
ness of  the  company. 

The  purpose  of  the  company  to  obtain  means  whereby  to  cancel  its 
indebtedness  is  ascribed  to  it  by  the  honorable  commissioner  for  Vene- 
zuela in  his  opinion  in  this  case,  where  he  says: 

And  lastly,  their  attempts,  twice  I)afHed,  to  convert  first  into  an  English  company  with 
the  name  of  "The  Orinoco  Exploration  and  Trading  Company,"  and  later  into  a  Belgian 
limited  company,  under  tlie  name  of  "Compagnie  International  des  Caoutchoucs,"  both 
attempts  having  been  made  with  the  object  of  obtaining  an  increase  of  casli  capital  to  pay 
off  debts  and  proceed  with  the  business. 

The  liquidators  of  the  company  presented  a  further  memorial  of 
their  difficulties  to  the  minister  of  foreign  affairs  for  France,  December 
5,  1895. 

For  quite  a  portion  of  the  time  elapsing  between  October  14, 1891 ,  and 
the  treaty  of  February  19,  1902,  the  two  Governments  had  not  been  in 
friendly  diplomatic  relation.  This  fact  is  named  as  an  explanation  of 
delays  which  have  occurred  in  the  presentation  and  pursuit  of  this 
claim  diplomatically. 

In  the  preceding  attempt  to  present  the  salient  facts  of  this  case 
much  time  has  been  taken  and  many  words  have  been  used,  and  yet 
much  which  tends  to  throw  light  upon  it  has  been  omitted  in  order  to 
condense  and  shorten  the  statement.  It  is  hoped  that  the  bases  upon 
which  a  decision  must  rest  are  sufficiently  apparent.  The  umpire 
must  acknowledge  his  indebtedness  to  the  company  for  the  valued  aiil 
of  its  counsel  Mr.  Poincaré,  and  to  the  honorable  commissioners  for 
their  efficient  services  both  in  the  matters  of  fact  and  in  the  justice  aud 
equity  to  be  evolved  therefrom  in  arriving  at  a  right  award. 

The  claimant  Government  asserts  its  right  of  recovery  because  of 
denials  of  justice  through  a  long  series  of  administrative  and  govern- 
mental measures,  notably  the  decrees  of  August  8  and  9,  1890,  and  the 
sequestration  of  1893;  also  finds  cause  therefor  in  the  unpunished 
wrongs  perpetrated  by  Valentin  Perez  and  in  the  abuses  of  the  powers  of 
the  governors,  notably  Mr.  d'Aubeterre,  and  the  decree  of  annulment 
by  pro  tempore  Governor  Page;  likewise  in  the  decree  of  the  minister 
of  hacienda  in  April,  1890,  and  in  successive  acts  of  the  minister  of  the 
interior  in  the  same  year;  and,  further,  in  a  multitude  of  acts,  of 
manœuvers,  of  outrages;  also  in  the  refusal  of  the  respondent  Govern- 
ment to  permit  assignments  of  the  concessions  of  the  company  and  its 
properties  to  the  English  company  formed  and  registered,  and  to  recog- 
nize and  allow  said  English  company  to  take  up  and  carry  on  the  con- 
tracts of  December  17,  1885,  and  of  April  1,  1887,  together  with  its 
unjust  silence  respecting  the  Colombian- Venezuelan  arbitration  and 


352  COMPANY    GENERAL    OF    THE    ORINOCO    CASE. 

its  acquiescence  in  the  large  expenditures  made  1)V  the  companj'in  the 
extension  and  development  of  its  enterprise  after  the  knowledge  of  the 
Government  tliat  there  had  been  no  compliance  in  fact  with  the  pro- 
visions concerning  the  railroads  around  the  raj)ids  of  Atures  and  the 
rapids  of  Maipures,  and  to  the  general  attitude  of  the  Government  and 
its  athninistration  toward  tlie  company  after  the  year  1888,  wherc])y 
it  permitted,  if  it  did  not  incite,  attacks,  open  and  covert,  uj)()n  the 
concessions  of  the  company. 

It  also  claims  denials  of  justice  through  violations  of  public  and  pri- 
vate right,  connnitted  not  only  in  the  course  of  the  process  (suit  of 
1890),  but  outside  of  ever}''  judicial  instance.  Concerning  the  suit  for 
rescission,  it  is  alleged  to  be  a  nullity,  because  (a)  that  Mr.  Fiat,  the 
attorney  of  the  company  in  Caracas,  received  no  citation  or  order  to 
appear  at  the  time  of  the  presentation  by  the  ñscal  nacional  de 
hacienda  })efore  the  high  Federal  court  of  the  demand  for  rescission 
of  the  contracts  and  payment  of  an  indemnity;  (!))  the  rogatory  com- 
missions issued  in  said  cause  on  the  motion  of  the  defendant  for  the 
investigation  in  Europe  were  irregular  in  the  issue  and  transmissicm 
and  ineffective  through  the  fault  of  the  court  or  the  Government;  (c) 
the  failure  of  the  court  or  the  Government  to  forewarn  ^Ir.  Fiat  or  the 
advocates  of  the  defendant  of  the  day  set  for  the  oral  pleadings  in  the 
cause,  and  the  resultant  nonparticipation  of  tlie  defendant  in  such 
hearing;  (d)  the  sentence  of  the  court  October  14,  1891,  was  rendered 
in  the  absence  of  Mr.  Fiat  and  the  advocates  of  the  defendant  and 
without  citation  upon  them  or  either  of  them  to  be  present  and  without 
their  knowledge,  in  fact,  thaf  the  sentence  was  to  be  pronouncetl,  and 
without  other  knowledge  than  its  publication  in  the  Odicial  Gazette 
of  October  17,  tlu'ee  days  after  the  decree  was  pronudgated.  This 
procedure  was  said  to  be  in  violation  of  Title  5,  Venezuelan  Code  of 
Civil  Procedure  with  regard  to  citation. 

The  claimant  company  also  asserts  its  right  for  indemnity  arising 
from  retjuisitions  of  and  injuries  to  its  property  by  the  authorities  of 
the  respondent  Government  and  for  other  acts  contrary  to  the  law  of 
nations.  The  honorable  commissioner  for  Venezuela,  a  lawyer  of 
high  standing  in  the  courts  of  his  country,  skillful  in  liis  profession, 
and  of  high  honor,  whose  opinion  in  such  a  matter  is  entitleil  to  great 
weight,  finds  no  irregularities  in  the  preliminary  process  of  the  high 
Federal  court .     Tlie  umpire  fails  to  observe  any. 

However,  if  the  umpire  regarded  the  point  as  possessing  value,  he 
would  more  carefully  study  the  (juestion.  In  his  opinion  the  appear- 
ance of  Mr.  Fiat  as  disclosed  cures  all  irregularity  of  notice  or  entire 
lack  of  official  notification,  had  either  existed.  This  proposition  is 
elementary,  and  recpiires  no  authority  to  sustain  it.  It  oliectually 
removes  the  first  objection  of  the  claimant  to  the  proceedings  of  the 
hiirl)  Federal  court. 


OPINION    OF    THE    UMPIRE.  353 

The  second  objection  refers  to  the  issuing  of  the  rogator}^  commis- 
sions from  the  court  direct  to  the  attorney  of  the  company  instead  of 
transmitting  them  through  di])l<)inati('  cliannels  at  its  instance  and 
through  its  personal  procurement.  This  is  rcgardotl  as  fatal  error  by 
the  eminent  counsel  of  the  claimant  company.  Much  ingenuity,  ability, 
and  learning  is  displayed  in  an  effort  to  charge  the  failure  in  the  execu- 
tion of  some  of  these  commissions  upon  this  act  of  the  court  and  thereby 
to  find  cause  to  invalidate  its  final  decree.  Without  entering  the 
domain  of  tliis  discussion  it  suffices  to  say  that  the  attorney  of  the 
company  acceptetl  these  commissions  from  the  hand  of  the  court's 
officer  without  objection  and  proceeded  to  make  use  of  them  in  his 
own  way.  It  was  he,  and  not  the  court,  who  sent  them  a})road  through 
other  than  diplomatic  channels.  He  had  always  the  right  and  the 
opportunity  to  obtain  the  aid  and  the  intervention  of  the  friendly 
diplomatic  powers  of  France.  He  had,  moreover,  the  unused  privi- 
lege of  preferring  to  the  high  Federal  court  a  petition  for  the  reissuing 
of  those  commissions  and  their  transmission  tlu'ough  such  channels  as 
he  might  then  request  or  suggest.  There  were  many  months  in  Avhich 
he  should  have  learnetl  the  necessity  of  such  procedure,  if  it  existed, 
and  in  which  he  might  have  appeared  before  the  court  for  such  pur- 
pose. So  far  as  appears  of  record,  every  recpiest  he  made  in  court  was 
granted,  and  any  failure  to  educe  evidence  through  the  rogatory  com- 
missions must  be  charged  to  the  action  or  inaction  of  the  company's 
attorney,  and  not  to  the  liigh  Federal  court  or  the  respondent  Gov- 
ernment. Such  is  the  judgment  of  the  umpire  upon  the  second  point 
of  objection  to  the  judicial  process  in  question. 

Objections  "c"  and  "d"  will  be  considered  together. 

The  first  point  to  be  recalled  is  that  the  recognized  and  accredited 
attorney  of  the  company  before  the  high  Federal  court  was  Andrés 
Fiat.  His  power  of  attornej'  had  been  presented  to  the  inspection 
of  the  court,  it  had  been  translated,  examined,  adjudged  to  be  ample 
and  correct,  and  in  virtue  thereof  he  was  accorded  a  representative 
character  for  said  company  in  said  court.  He  had  resigned.  His 
resignation  had  been  accepted  by  the  company.  Another  had  been 
appointed,  and  had  declined  to  serve.  It  does  not  appear  that  Mr. 
Berthier  was  constituted  an  attorney  mth  letters  as  such.  If  he  were, 
he  failed  to  ({ualify  before  the  court.  Until  his  resignation  Mr.  Fiat 
was  the  attorney  of  the  company.  Doctors  Urbaneja  and  Feo  were 
his  counsel,  so  designated  and  named  by  him  in  court  and  so  recognized 
and  received.  It  is  also  true  that  so  far  as  the  umpire  knows  at  this 
time  there  was  no-  duly  constituted  attorney  of  the  company  in  Vene- 
zuela. This  was  the  situation  Se])tember  25,  1891,  the  day  on  which 
selection  was  made  by  the  court  of  the  time  on  which  the  final  audi- 
ence was  to  take  place  and  the  parties  were  to  be  heard  orally  and  in 
writing  by  their  respective  advocates.  The  situation  was  the  same 
S.  Doc.  533,  59—1 23 


854  COMPANY    GENERAL    OF    THE    ORINOCO    CASE. 

September  29.  and  it  had  not  changed  October  14.  Was  the  high 
Federal  court  charged  with  any  <hity  of  notice  to  the  company  under 
these  (  ircimistances,  provided  such  notice  was  required  by  the  laws 
of  the  country  and  tlie  rules  of  the  court,  if  there  had  been  an  attorney 
of  the  company  known  to  the  court  within  reach  of  its  process?  The 
honorable  commissioner  for  Venezuela  holds  that  articles  109  and 
162  of  the  Code  of  Procedure  do  n(jt  apply  to  such  a  case  as  is  here 
presented.  Article  109  refers  to  a  cause  in  suspension;  "article  162, 
to  a  case  of  indefinite  delay.  In  his  opinion  he  gives  a  historical 
review  of  the  case  from  its  inception  to  the  decree,  and  from  this 
review  he  reaches  the  conclusion  that — 

the  seutcnce  was  thus  pronounced  by  the  high  Federal  court  after  compljùng  rigorously 
with  tlu'  Icfial  prescriptions,  and  with  all  the  formalities  of  the  proceedings  as  established 
by  law  on  behalf  of  both  parties  interested  for  the  defense  of  their  respective  rights. 

He  holds  that  the  case  had  never  ])een  in  suspense;  that  the  day 
on  which  the  time  had  expired  for  producing  proofs  the  re{)resentative 
of  the  Government  moved  for  active  continuation  of  the  case  and  the 
court  acceded  to  his  motion. 

Similarly,  the  honorable  commissioner  finds  no  indefinite  delay 
such  as  is  designated  in  and  covered  by  article  162. 

Doctors  Urbaneja  and  Feo,  also  learned  in  the  law,  gave  an  opinion 
sustaining  the  contention  of  the  claimants.  It  is  not  necessary  for 
the  umpire  to  decide  between  these  cfmflicting  opinions,  since  the 
company  had  opportunity  to  test  the  worth  of  its  contentions  by  a 
petition  to  the  high  Federal  court  to  invalidate  its  decision  under 
and  ])}'  virtue  of  case  I,  article  538,  of  the  Code  of  Civil  Procedure  then 
in  force  in  Venezuela.  If  the  points  now  urged  before  the  umpire 
were  of  the  character  to  come  under  that  article,  the  duty  of  the  court 
was  clear  and  its  action  certain.  Practically  it  nuist  come  under 
the  terms  of  that  article  or  else  it  had  not  the  vitality  now  claimed 
for  it. 

For  six  months  an  opportunity  existed  wherein  this  question  could 
be  considered,  the  proofs  marshaled,  and  the  petition  made.  If  there 
had  been  such  grave  fault  on  the  ])art  of  the  higli  Federal  «-ourt  as 
in  the  opinion  of  the  company's  eminent  counsel  would  amount  to  a 
denial  of  justice,  why  was  not  an  effort  made,  based  upon  these 
grounds,  to  sectn-e  an  invalidation  of  the  decree?  If  this  had  been 
done  and  there  had  resulted  a  refusal  on  the  |)art  of  the  court  to 
reopen  the  case,  then  tlic  duty  of  the  umj)ire  to  carefidly  consider 
the  law  and  the  facts  relating  to  this  objiM-tion  would  be  paramount. 
There  is  not  a  single  act  of  the  high  Federal  court  rn  connection  with 
the  suit  ill  (jucstion  which  suggests  in  |1h>  slightest  degree  any  other 
than  a  scrupulous  regard  for  the  lights  of  the  defendants  therein. 
With  this  judgment  formed  from  his  study  of  the  |M'oce(lur(>  in  this 
case  the  umpire  wt)uld  be  peculiarly  constituted  if  he  should  hokl 


OPINION    OF    THE    TtMVIRE.  855 

that  this  distinguished  body  ANould  necessarily  depart  from  its  well- 
ordered  course  when  there  was  presented  before  it  a  just  cause  for 
reconsideration. 

In  the  suit  to  rescind  the  contracts  of  December  17,  1885,  and  of 
April  1,  1887,  it  is  therefore  adjudged  that  the  decree  of  the  high 
Federal  court  of  October  14,  1891, 'is  not  now  open  to  attack  by  the 
defendant  therein  through  the  intervention  of  the  claimant  Govern- 
ment, and  it  is  not  a  denial  of  justice  under  the  treaty  of  1885,  or 
in  virtue  of  the  rules  and  principles  of  public  law. 

It  follows,  therefore,  that  ever^^  matter  and  point  distinctly  in 
issue  in  said  cause,  and  which  was  directly  passed  upon  and  deter- 
mined in  said  decree,  and  which  was  its  ground  and  basis,  is  con- 
cluded b}'  said  judgment,  and  the  claimants  themselves  and  the  claim- 
ant Government  in  their  behalf  are  forever  estopped  from  asserting 
any  right  or  claim  based  in  any  part  upon  any  fact  actually  and 
directly  involved  in  said  decree. 

The  general  principle  announced  in  numerous  cases  is  that  a  riglit,  (juestion,  or  fact  dis- 
tinctly put  in  issue  and  directly  determined  by  a  court  of  competent  jurisdiction,  as  a  ground 
of  recoverj',  can  not  be  disputed,  etc.. 

Southern  Pacific  R.  Co.  v.  U.  S.,  168  Sup.  Ct.  Rep.,  1.  (S.  C,  L.  C.  P.  Co.,  42,  377,  %vith 
extensive  annotations.) 

Also,  see  9  Encylc.  PI.  and  Pr.,  625,  and  the  notes. 

Is  this  holding  by  the  umpire  conclusive  of  this  claim?  The  answ^er 
is  affected  by  the  decision  which  he  will  make  upon  the  proposition, 
that  no  award  can  be  predicated  upon  any  other  ground  than  a  denial 
of  justice  ;  which  proposition  is  based  upon  the  ground  that  the  treaty 
of  1885  is  determinative  of  the  issues  which  ma}'  be  decided  by  this 
honorable  commission.  If  the  treaty  of  1885  is  applicable  to  this  ease, 
then  liis  position  in  reference  to  the  decree  of  October  14,  1891,  decides 
adversely  this  claim. 

If  the  treaty  of  1885  was  bjpfore  the  umpire  he  would  interpret  its 
provisions  as  did  the  honorable  President  of  the  Swiss  Republic  in  the 
Fabiani  aw^ard.  Being  so  interpreted,  it  would  be  impossible  to  award 
damages  here.  There  has  been  no  denial  of  justice,  nor  such  a  delay 
of  justice  according  to  usage  or  to  law,  nor  such  exhaustion  of  the  legal 
means  available  to  the  claimants,  nor  such  a  violation  of  treaty  or  the 
rules  of  the  right  of  nations  as  would  admit  of  a  favorable  award,  if  the 
jurisdiction  of  this  honorable  commission  is  thus  limited.  Such,  how- 
ever, is  not  the  interpretation  placed  by  the  umpire  upon  the  conven- 
tion of  February  19,  1902.     Article  2  of  that  protocol  provides  that — 

Demands  for  indemnities  other  than  those  which  arc  aimed  at  in  article  1 .  l)ut  based  upon 
facts  anterior  to  tlie  23d  of  May,  1899,  will  be  examined  in  concert  by  the  minister  of  foreign 
affairs  of  Venezuela  and  by  the  French  minister  at  Caracas,  etc. 

All  of  the  cases  which  came  before  this  honorable  commission  at 
Caracas  in  1903,  including  the  eight  reserved  for  the  consideration  of 


35fi  (OMPANY    GENERAL    OF    THE    ORINOCO    CASE. 

the  umpire,  wero  under  the  above  provisions  of  article  2,  which  con- 
cludes with  the  clause: 

It  is  intended  that  tliis  procedure,  like  that  whicli  is  adopted  for  the  claims  of  1892,  is 
instituted  as  an  exception  only  and  does  not  invalidate  the  covenant  of  November  26.  1885. 

The  ])r()visi()ns  of  the  treaty  of  1885  were  not  interposed  in  the  case 
of  Jules  Brun,  heirs  of  Maninat,  Frierdich  &  Co.,  heirs  of  Massiani, 
Fieri  &  Co.,  or  Antoine  Fabiani.  It  was  apparently  not  interposed  in 
Caracas  af^ainst  any  of  the  cases  heard  by  the  honorable  commissioners 
and  reported  in  Ralston  and  Doyle's  Venezuelan  Arbitrations  of  1908. 

None  of  the  six  cases  above  referred  to  antl  now  before  the  umpire 
for  his  decisi(m  rest  upon  denials  of  justice.  All  have  been  submitted 
upon  the  claim,  implied  or  stated,  that  the  treaty  of  1885  did  not  apply. 
The  Fabiani  claim  was  based  entirely  upon  this  proposition.  To  these 
positions  of  the  claimants  there  has  been  no  dissent  on  the  part  of  the 
respondent  Government.  The  umpire  has  been  permitted  to  proceed 
upon  this  theory  and  has  made  liis  judgment  and  awards  in  accordance 
with  what  he  understood  to  be  the  admitted  construction  of  the  con- 
vention of  1902;  and  it  is  not  until  he  reaches  the  case  now  in  hand 
that  this  question  is  raised,  if  it  is  now  distinctly  raised,  by  the  respond- 
ent Government.  He  is  inclined  to  the  view  that  it  is  practically  in 
assent  to  the  assumption  of  the  eminent  counsel  for  the  claimants  that 
such  might  be  the  construction  of  this  treaty  that  the  respondent  Gov- 
ernment takes  the  position  it  has  seemed  to  take  in  this  case  and 
contends  for  the  paramount  authority  of  the  treaty  of  1885. 

Were  the  umpire  unaided  by  the  interpretation  wliich  in  practice 
has  been  placed  upon  the  protocol  of  1902,  he  would  have  no  serious 
difficulty  in  construing  it  adversely  to  the  contention  of  the  respond- 
ent Government.  In  efi^ect,  if  not  in  express  terms,  the  treaty  of  1885, 
by  the  convention  of  1 902,  is  left  in  force  generally  ;  but  for  the  puq^oses 
of  claims  to  be  considered  under  article  2  of  the  last-mentioned  con- 
vention the  treaty  of  1885  has  wholly  superseded  and  practically  abro- 
gated it  so  long  as  the  protocol  of  1902  remains  effective.  Such  nuist  be 
the  meaning  of  that  provision  in  article  1  of  the  ]irotocol  of  1902,  which 
relates  to — 

examininfi  in  concert  the  demands  for  iiidenniity  presented  by  Frenthmcn  for  danuij^es 
sustained  in  Venezuela,  etc. 

Concerning  this  there  might  exist  a  doubt,  but  not  when  there  is 
considered  the  ])r()visions  heretofore  quoted,  that  the  ])roceilure  insti- 
tuted by  the  ])rotocol  of  1902  is — 
as  an  exception  only  and  does  not  invalidate  f  lie  covenaiil  of  XovciiiIxt  2(1,  18S.5. 

Tiic  uiii])irc  iiolds,  therefore,  that  by  the  terms  of  lluM-oiiNciit  ion  of 
FcbiMiary  19,  1902,  he  cim  awai-d  such  sum  in  daniag(>s  in  any  ¡lud  ¡dl 
of  I  lie  cases  subiuitlcd  lo  jiiin  ;is.  in  his  judgmciil .  ])r()])('ily  clarilicd 


OPINION    OF   THE    UMPIRE.  357 

and  stoatlied  by  the  etliical  precepts  o  I"  international  law,  tHjuit  y  ai  id 
good  conscience  demand,  in  no  respect  limited  or  controlled  by  the 
treaty  of  1885. 

It  is  a  consequence  of  this  holding  that  if  there  were  aught  of  wrong 
toward  the  (V^mpany  General  of  the  Orinoco  done  or  permitted  by  the 
respondent  Government  through  officials  or  persons  for  whose  acts  the 
Federal  Government  is  responsible  which  were  not  concluded  in  and 
determined  by  the  decree  of  October  14,  1891,  then  over  such  this  hon- 
orable commission  has  jurisdiction  and  for  such  there  may  be  an  award 
m  damages  if  justice  and  equity  so  permit  and  so  require. 

In  the  o])inioii  of  the  umpire  there  are  many  matters  anterior  to  Ma}' 
28,  1890,  which  might  seriously  affect  the  rights  of  the  content! ing  par- 
ties which  were  not  at  all  involved  in  the  decree  of  the  high  Federal 
court.  The  restrictive  (jualit}'  of  estoppel  by  judgments  is  well  under- 
stood. It  is  not  broader  than  the  rule  stated  by  the  umi)ire  in  this 
case.  It  is  only  the  particular  matter  in  controversy  which  is  decided. 
It  is  the  exact  issue  as  formed  which  is  determined.  There  must  be 
identity  of  cause,  the  same  questions  in  issue,  the  same  subject-matter. 
(9  Encycl.  PI.  and  Pr.,  622-623;  id.,  624,  625;  Storj^'s  Eq.  Pleadings, 
par.  791  ;  24  Encycl.  of  Law,  2d  éd.,  775;  5  Encycl.  PI.  and  Pr.,  780.) 

What  was  affirmed  in  the  case  in  question  by  the  plaintiff  therein? 

(1)  That  on  the  part  of  the  plaintiff  Government  it  had  ñilfilled  the 
stipulations  agreed  to  in  both  contracts.  (2)  That  certain  articles 
and  parts  of  articles  of  both  contracts  as  set  out  in  the  declaration  had 
not  been  ftdfilled  on  the  part  of  the  defendant. 

Wliat  Wîis  the  pleading  of  the  company  ?   (1)  Thi.t  it  liad  ])erformed. 

(2)  When  it  had  not  performed  it  hud  been  prevented  by  main  force  or 
by  the  acts  and  neglects  of  the  Government  or  by  the  acts  and  neglects 
of  the  authorities  for  whom  the  Government  w  s  responsible,  these 
acts  and  neglects  referring  to  tlie  matters  of  the  contract.  Such  were 
the  issues.  These  were  determined:  That  the  Government  had  ful- 
filled on  its  part  all  the  obligations  which  the  two  s  id  contracts  imposed 
uj)on  it;  that  the  défendent  had  not  fulfilled  the  o})ligations  contained 
in  Nos.  1,  2,  3,  4,  5,  6,  7,  and  9  of  the  contract  of  December  17,  1885, 
nor  the  stipulations  3,  4,  ;  nd  5  of  the  contri  ct  of  April  1,  1S87;  that  it 
was  not  prevented  from  fulfilling  these  obligations  liy  insurmountable 
difficulties  constituting /orce  majeure  nor  was  it  so  prevented  l)y  the 
acts  of  raithorities  dependent  upon  the  Government  itself  and  con- 
trary to  the  stipulations  of  the  contract.  This  reference  to  the  acts 
of  authorities  dependent  upon  the  Government  in  the  answer  of  the 
defendant  in  excuse  for  its  failure  to  fulfill  certihi  of  its  obligations  is 
understood  solely  to  refer  to  matters  springing  from  the  contracts  and 
referring  to  the  Government  as  the  other  party  thereto.  Such  also  in 
the  opinion  of  the  umpire  is  the  force,  extent,  and  V!).lue  of  the 
decree   upon  that  point.      However,   from  the  attitude  wliich   this 


358  COMPANY    OENERAL    (>F    THE    ÔRINOPO    CASE. 

chiiin  has  assunu-d  in  [\\v  iniiid  of  the  umpire  it  is  not  ncci'ssary  thai 
he  make  criticr.l  analysis  of  the  decree  or  •>!"  the  elements  of  fact 
anterior  to  Mav  2S,  lSi)(),  wliicli  niüv  or  m;'y  not  l)e  inehided 
therein  and  eonckided  therehy. 

The  answer  of  the  defendant  company  in  the  suit  for  rescission  was 
in  defense  only.  It  presented  and  su<rirested  no  counterclaims  or 
claims  in  set-off.  These  were  reserved.  They  were  not  ])lead,  not 
in  issue,  were  not  litigated,  and  therefore  cr.n  not  he  concluded  by  the 
decree. 

Tlie  langiiagi",  tlicivlorc,  wlucli  is  .so  often  used,  that  a  judgment  estops  not  only  as  to  every 
ground  of  recovery  or  defense  actually  presented  in  the  action,  hut  also  as  to  every  ground 
which  might  have  been  presented,  is  .strictly  accurate,  when  applied  to  the  demand  or  claim 
in  controversy.  Such  demand,  or  claim,  having  pa.ssed  into  judgment,  can  not  again  lie 
brought  into  litigation  between  the  parties  in  proceedings  at  law,  upon  any  ground  whatever. 

Hut  wiiere  the  .second  action  l>etwcen  the  same  parties  is  upon  a  différent  claim  or  demand, 
the  judgment  in  tbi'jirior  action  operates  as  an  estoppel  only  a.s  to  those  matters  in  is.sue  or 
points  controverted,  upon  the  determination  of  which  the  finding  or  verdict  was  rendered. 
In  all  cases,  therefore,  where  it  is  sought  to  apply  the  estoppel  of  a  judgment  rendered  upon 
one  cau.sc  of  action  to  matters  arising  in  a  suit  upon  a  different  cau.so  of  action,  the  inquiry- 
must  always  be  as  to  the  point  or  question  actually  litigated  and  determined  in  the  original 
action:  not  what  might  have  been  thus  litigated  and  determined.  Only  upon  such  matters 
is  tlie  judgment  conclusive  in  another  action.  (Cromwell  r.  Sac  County,  Í  Otto  (V.  S.  Sup. 
Ct.),  3.51-371;  (S.  C,  L.  C.  P.  Co.,  24,  19.5-204,  and  note.) 

The  law  in  respect  to  estoppel  by  judgment  is  well  settled,  and  tlie  only  difficulty  lies  in 
the  application  of  the  law  to  the  facts.  The  particular  matter  in  controversy  in  the  adverse 
suit  was  the  triangular  piece  of  ground,  which  is  not  the  matter  of  dispute  in  this  action. 
The  judgment  in  that  oa.se  tlierefore  is  not  conclusive  in  this  as  to  matters  which  might  have 
been  decided,  but  only  as  to  matters  irhich  were  in  fact  decided.  (Last  Chance  Mining  Co.  r. 
Tyler  Mining  Co.  1.57  V.  S.  Sup.  Ct.,  683-68.5;  (S.  C,  L.  C.  P.  Co.  39,  .S(i2):  9  Encyd.  PÎ. 
and  Pr.,  629-6.30;  24  Encycl.  of  Law,  2d  éd.,  77.5.) 

Not  having  been  pleaded  and  passed  upon  in  the  suit  for  rescission, 
all  claims  or  demands  which  b}'  the  claimant  company  on  May  28,  1890, 
might  have  been  plead  i:s  counterclaims  or  claims  in  set-off  to  the  suit 
for  rescission  in  its  prayer  for  damages,  or  which  might  have  consti- 
tuted at  that  time  ground  for  an  independent  action,  are  ])roper  to  be 
presented  and  considered  in  this  honorable  commission  t  s  substantive 
ground  for  an  award.      (24  Encycl.  of  Law,  2d  éd..  775;  id.,  7i)l .) 

It  is  certain  that  a  claim  in  offset  would  not  be  concluded  by  a  judgment  wiien  it  was 
neither  placed,  considered,  nor  dcducled  in  making  up  tlie  judgment.  (Sup.  Ct.  of  Vt., 
found  in  .52  Vt.,  121.) 

For  the  same  reasons  as  have  already  been  given,  the  decisitm  of 
October  14,  1891,  settled  nothing  after  May  28,  1890,  the  day  on 
which  the  suit  to  rescind  was  entered  in  the  high  Federal  court  by  the 
ii.scal  nacional  de  haciendti.  The  issues  were  formed  as  of  that  date. 
Tlie  cause  of  action  had  then  accrued.  It  then  existed  or  the  court 
had  no  jurisdiction.  For  .such  ctiuses  as  accrued  after  that  date  the 
coiHl  gaint'd  no  juri.sdiction  in  virtue  of  the  suit  then  ])ending.     The 


(►PINION    OK    THE    rMITKK.  359 

actions  of  the  claimant  coni])any  and  of  tlic  respondent  Government 
posterior  to  that  date  arc  all  |)ro])cr  subjects  of  inqiiirs'  and  of  award. 

Tl\o  rausc  of  action  does  not  accrue  until  tlie  existence  of  such  a  state  of  things  as  will 
enable  a  person  liaving  the  proper  relations  to  the  property  or  persons  concerned  to  l)ring 
an  action:     *     *     *.     (i  Bouv.  Law  Diet.,  295.) 

Causes  of  action  must  e.xist  at  time  of  commencement  of  suit.  (1  Encyci.  PI.  and 
Pr.,  209). 

Hence  a  judgment  against  a  defendant  is  not  conclusive  as  to  .set-t)ir  or  counterclaim 
which  he  might  have  pleaded  to  the  action.  In  the  absence  of  statute  a  defendant  having 
a  cross-demand  against  the  plaintilT  may,  at  his  election,  either  use  it  in  the  pending  suits  as 
a  set-o(ï,  or  reser\'e  it  to  be  used  as  the  l)asis  of  an  independent  action.  Ilis  failure,  tliere- 
fore,  to  plead  it  does  not  preclude  him  from  bringing  a  sul)sequcnt  action  upon  it.  (24 
Encj'cl.  of  Law,  785.  ) 

Notwithstandino;  the  clear  rifjlit  of  this  honorable  eommssion  to 
weicih,  pass  upon,  and  merge  in  the  award  any  and  all  rightful  claims 
for  damages  inhering  in  the  claimant  company  for  wrongs  suffered 
through  those  for  whom  the  respondent  Government  is  responsible  and 
w'hich  occurred  prior  to  May  28,  1890,  it  does  not  become  necessar\"  to 
take  tliis  position  m  order  to  obtain  equity  in  tliis  claim,  and  for  that 
reason  only  none  such  will  be  considered  for  that  purpose. 

There  is  no  disagreement  that  in  the  spring  and  summer  of  1890 
arrangements  had  been  perfected  by  the  liquidator  of  the  company 
and  approved  by  its  shareholders  whereby  an  English  company 
regularly  organized  and  registered  was  to  take  over  the  properties 
and  franchises,  rights,  and  privileges  of  the  Company'  General  of  the 
Orinoco,  assume  and  pay  its  indebtedness,  and  furnish  a  pecuniary 
basis  for  the  continuation  of  its  enterprise.  It  is  agreed  that  this 
compact  and  these  results  failed  to  be  consummated  solely  tlu-ough  the 
absolute  refusal  of  the  respondent  Government  to  permit  it.  There 
were  unquestionably  grave  reasons  of  state  wliich  animated  and 
inspired  this  action  of  the  respondent  Government  and  wliich  in  its 
judgment  required  and  compelled  it  to  take  this  course;  but  it  was  as 
fatal  to  the  interests  of  the  claimant  company  as  though  diíTerently 
inspired.  The  contention  wdiich  had  been  ver^'  tlireatenmg  and 
serious  between  the  United  States  of  Venezuela  and  Great  Britain 
over  the  right  of  the  latter  to  an  ec^ual  control  with  the  former  Gov- 
ernment of  certain  mouths  of  the  Orinoco — a  right  claimed  largely 
through  alleged  occupancy  bj'  the  British  citizens  of  the  country 
contiguous  thereto — was  a  cogent  reason  why  the  former  Government 
should  seriously  object  to  any  relations  with  a  British  company  through 
a  contract  which  by  its  very  terms  gave  exclusive  rights  in  certain 
portions  of  that  river  and  peculiar  privileges  over  its  whole  extent. 
That  to  Venezuela  it  seemed  impossible  to  permit  such  a  condition  to 
exist  is  evident  from  its  acts.  That  it  was  wholly  justified  in  this 
assumption  is  the  opinion  of  the  umpire.  As  a  party  to  the  contract, 
however,  it  was  bound  by  its  terms,  and  one  of  its  provisions  spe- 


3('>()  COMPANY  (;kní:ral  ok  thk  ohixoco  case. 

ciiifully  ])t'riiiitlt'(l,  uithoiil  rest  iiCt  ¡on  or  siipcixision,  just  such  ¡iii 
assitjnnient  as  was  proposed. 

Tlie  ri<;lit  to  assit^ii  was  the  solr  value  ol'  the  contract  to  tlie  ori^íinal 
concessionary.  It  was  exercised  airain  in  the  contract  passetl  from 
the  syndicate  to  the  company.  These  assignments  were  recognized 
by  the  respondent  Government.  The  inter])retation  was  tlnis  and 
then  made  by  the  parties  thereto  and  especiall}'  hj  the  Government 
of  ^>nezuela  that  the  assignment  named  in  the  contract  was  not 
restrictive  in  its  operation  to  the  first  concessionary.  Witlioiit  sucli  an 
inteq:>retation  l)y  the  parties  thereto  it  wouUl  seem  to  the  umpire  to 
be  the  only  correct  inference  to  be  drawn  from  the  language  used  when 
the  piiqjoses  and  coiiihtions  are  considered. 

This  is  beyond  all  fair  question.  As  the  Government  of  Venezuela, 
whose  duty  of  self-preservation  rose  superior  to  any  question  of  con- 
tract, it  liad  the  power  to  abrogate  the  contract  in  whole  or  in  part. 
It  exercised  that  power  and  canceled  tlu'  provision  of  unrestricted 
assignment.  It  considered  the  peril  superior  to  the  obligation  and 
substituted  therefor  the  duty  of  compensation.  Had  there  been  no 
other  troublesome  (piestion  cf  State  entangled  with  the  contracts  of 
the  Company  General  of  the  Orinoco  it  is  quite  possible  that  this  gov- 
ernmental surgery  would  not  have  taken  the  life  of  the  claimant  com- 
pany.    Such  entanglements,  however,  existed. 

One  is  found  in  the  controversies  between  Venezuela  and  Colom- 
bia over  the  terms  of  those  ccmtracts,  the  territory  involved,  and  the 
claims  of  the  company  in  connection  therewith.  A  careful  student  of 
the  situation  quickly  discerns  the  delicate  position  occupied  in  that 
matter  by  the  respondent  Government.  It  is  not  difhcult  to  under- 
stand the  supreme  confidence  of  Gen.  Guzman  Jilanco  and  of  \'ene- 
zuela  in  general,  concerning  the  favorable  final  outcome  of  the  arbi- 
tration then  resting  in  the  hands  of  Ilis  Majesty  the  King  of  S])aiii. 
This  belief  was  .so  intense,  so  complete,  that  it  is  evident  that  the 
dispute  over  the  boundary  and  the  pending  arbitration  were  not  dis- 
turbing factors  in  the  ])lans  of  Venezuelans  or  of  their  (íovernment. 
This  easy  and  perfect  coniidence  begot  a  carelessness  of  conduct  in 
reference  to  the  territories  involved,  readily  imderstood  but  none  the 
lesh,  even  more,  distur])ing  to  the  other  ])arty  litigant.  The  ])osition 
of  Colombia  was  undeniably  correct.  A'eneziiela  could  not  (|Uestion 
it.  The  serene  c(mlidence  of  Gen,  Guzman  Blanco  and  his  coni])atriots 
had  unintentionally  betrayed  the  Ke])nblic  into  a  seeming  .serious 
afl'ront  to  Colombia.  The  contracts  were  .susceptible  of  no  other 
interpretatiim  than  thai  through  thcni  there  was  an  assumi)tion  in 
Venezuela  of  exclusive  control  over  the  U])])er  Orinoco  and  its  im])or- 
tant  conduents  entering  it  from  the  west  and  ov(>r  larg(>  areas  of  terri- 
tory to  the  west  of  the  Orinoco.  Eijually,  there  was  an  assumption 
that   this  control   was   to  cxi.st   indelinitelv.     notwithstanding   tho 


OPINION    OK    THF.    TMI'IRK.  361 

poiidinjí  liti<i;ati()n  over  the  bouiuluiy,  the  ('()iu])aiiy  (îeuenil  of  Ori- 
noco was  permitted  to  enter  into  unquestioned  and  alisohite  possession 
of  these  htigated  areas.  From  the  view  point  of  nations  the  respond- 
ent Government  had  been  led  into  j^rave  error.  This  error  it  must 
repair.  It  could  only  repair  by  receding.  It  coidd  only  recede  by 
compromise  with  the  company  or  by  annulment.  Kvery  day  tliat  the 
contract  was  continued  it  was  more  or  less  a  menace  to  the  i)eacel\d 
relations  then  existing  between  those  two  countries.  That  which  had 
been  held  as  a  valued  enterprise,  a  boon  to  Venezuela,  for  th(>  reasons 
stated  had  become  a  source  of  serious  national  danger.  The  changed 
position  of  the  respondent  Government  toward  the  claimant  company, 
a  change  not  at  all  obscure  or  doubtftd,  is  thus  easily  and,  as  the  um- 
pire believes,  correctly  explained.  No  other  than  a  paramount  rea- 
son, in  the  belief  of  the  State,  can  explain  the  ministerial  decree  of 
May  17,  1S90;  the  suit  for  rescission  of  IMay  29,  1890;  the  gul)erna- 
torial  decree  of  June  16,  1890;  the  administrative  decree  of  August  9, 
disaffirming  the  action  of  the  governor  only  because  it  was  a  usurpa- 
tion of  power,  but  displacing  it  with  the  ministerial  decree  of  August 
9,  1890;  the  successive  and  progressive  acts  of  the  ministers  and  the 
governors  of  similar  tenor  and  effect  together  substantially  annihi- 
lating the  enterprise.  No  ordinary  cause  woiUd  have  suggested  or 
permitted  this  destruction  of  an  internal  improvement  possessing 
such  potentialities  for  the  future  of  Venezuela,  against  the  ordinar}^ 
policy  of  the  country,  which  had  been  to  foster  and  encourage  such 
enterprises. 

The  umpire  does  not  question  that  there  was  an  intimate  relation 
l)etween  these  administrative  and  official  acts  and  the  attitude  of 
Colombia  toward  the  respontlent  Government  in  regard  to  these  con- 
tracts. The  prompt  report  made  by  the  minister  for  foreign  affairs  to 
the  minister  plenipotentiary  of  Colombia  at  Caracas  has  deep  sig- 
nificance when  it  is  noticed  that  it  answered  a  communication  of  that 
same  Colombian  minister  of  date  Januarj^  24,  1890,  which  answer  had 
been  apparently  withheld  until  something  of  a  positive  and  decisive 
character  coidd  be  given.  Five  days  after  the  suit  was  entered  in 
court,  three  days  after  the  company  had  been  summoned,  the  day 
after  Mr.  Fiat  appeared,  this  notification  to  Colombia  was  made.  A 
suit  for  rescission  did  not  satisfy  Colombia.  Its  interests  were  still, 
in  its  judgment,  imperiled  and  would  remain  thus  imperiled  so  long 
as  the  company  had  power  or  opportunity  to  extend  its  exploitation 
over  the  debatable  ground.  Colombia  by  its  reply  of  June  6  indi- 
cates this  very  precisely  and  emphatically  to  the  respondent  Govern- 
ment. Following  this  correspondence  there  were  the  gu])ernatorial 
and  administrative  decrees  of  June  Hi,  August  8  and  9,  the  telegrams 
of  the  minister  for  the  interior  of  August  29,  and  his  letter  of  Septem- 
ber 10.     Other  facts  might  be  easilv  adduced  which  are  of  some  evi- 


3fî2  (OMl'AMV    (íENKRAL    <>K    THK    ORINOCO    CASE. 

(lential  value,  all  tendinis  toward  the  same  end.  Enough  has  been 
said,  liowever,  to  suiijîest  the  «iroiind  upon  which  the  umpire  bases 
liis  judgment  that  the  strait  of  \'enezuela  in  regard  to  the  Colombian 
incident  was  a  potent  cause  for  the  ])osition  assumed  by  the  responilent 
Government  toward  the  Company  General  of  the  Orinoco  in  1SS9. 
1890,  and  1S91.  It  was  a  questi(m  of  governmental  policy,  and  that 
Venezuela  decided  upon  this  plan  of  action  must  be  attributed  to  its 
solicitude  for  peace  with  a  sister  Republic. 

liinining  as  a  not  unimportant  thread  in  this  warp  of  discomfort  and 
resulting  discontent  of  the  respondent  Government  was  the  attitude 
of  antagonism  toward  the  company  assumed  by  the  business  men  of 
the  Orinoco  from  Ciudad  Bolívar  through  theTerritoriesof  tapper  Ori- 
noco and  Amazonas.  The  monopoly  in  the  natural  products  granted 
in  its  concessions  interfered  with  their  personal  enterprises.  These 
privileges  were  in  compensation  for  the  very  important  obligations 
resting  upon  the  company,  which  when  fulñlled  were  to  be  of  incal- 
culable value  to  the  country,  but  this  did  not  prevent  the  sense  of 
wrong  and  the  feeling  of  revolt  on  the  part  of  these  people.  That  this 
feeling  was  general  and  deep  on  their  part  is  readil}"  discerned.  The 
governors  and  officials  there  resident  were  naturally  sympathetic. 
The  President  and  his  c  abinet  observed  and  were  disturbed  by  these 
manifestations  of  anger  and  dissatisfaction,  which  became  very  appar- 
ent. The  situation  in  this  regard  was  grave.  The  Perez  campaign 
was  perhaps  the  most  violent  and  destnictive,  but  it  illustrates  the 
situation.  These  contracts  then  became  a  source  of  constant  annoy- 
ance to  the  administration  at  Caracas  and  of  menace  to  the  internal 
security  and  welfare  of  tlie  State.  It  is  (|uite  probable  that  the  natural 
hostility  of  the  business  men  of  that  section  of  the  country  was  increased 
and  made  bitter  and  rancorous  through  the  method  and  manner  of 
some  of  the  agents  of  the  company.  Where  concession  and  concilia- 
tion might  have  been  most  valuable  emollients,  they  were  not  always 
in  evidence,  but  instead  there  was  no  doubt  at  times  superciliousness 
and  arrogance. 

Such  is  the  purport  of  the  evidence  before  the  umpire.  It  is  too 
like  a  possible  fact  to  be  discredited.  It  is  not  strange  with  all  the 
cunmlative  reasons  therefor  that  tlic  Re|nd)lic  of  Venezuela  becanu» 
ver}^  weary  over  the  situation  which  its  contracts  had  created  or  ])er- 
mitted,  or  that  it  sighed  for  relief  therefrom  at  whatever  cost. 

The  .sum  to  be  awarded  the  clainumt  GovernnuMit  in  behalf  of  the 
liijuidators  must  })e  nuide  comnuMisurate  to  the  danuiges  causeil  by 
the  act  of  the  resptmdent  Government  in  denying  edicacy  to  the  con- 
tract of  a.ssignment  from  the  Company  General  of  the  Orinoco  to  \ho 
English  company.  A  careful  study  of  the  e\-ents  connected  with  this 
Governmental  act,  and  of  those  which  followed,  reveals  nothing  wliich 
in  any  degree  lightens  the  rcs]i()nsii)ility  or  in  any  i)iirt  chnngiv-^  the 


OPINION    OF    THE    HMPIRE.  363 

relation  which  the  respondent  Govenuuent  assumed  toward  tlie  (com- 
pany General  of  the  Orinoco  and  its  creditors  when  it  exercised  this 
sovereign  rii^ht.  The  successive  st'rui>:«!;les  of  the  company  for  exist- 
ence which  followed  this  act  have  been  collated  in  this  opinion;  they 
need  not  here  be  referred  to  in  detail.  vSuilice  it  to  say  that  its  ruin 
was  not  its  fault.  It  fou<!:ht  bravely  to  exist  either  in  its  own  or  in 
some  other  corporate  entity,  to  continue  in  its  contracts  as  they  then 
were  in  some  modified  form.  It  soup;ht  these  ends  persistently  and 
patiently,  but  without  avail.  Eventually  there  came  the  r(>volutionary 
upheaval  of  1892-93,  the  unsettled  conditions  which  followed,  then, 
at  the  hands  of  the  executive  and  judicial  powers  of  the  Territory — 
Upper  Orinoco — the  finale. 

These  efforts  of  the  company  for  resuscitation  and  the  expense 
involved  were  necessary,  but  they  can  not  be  charged  against  the 
respondent  Government.  They  are  not  a  proximate  residt  of  the 
primary  act  for  which  it  is  held  responsible  in  damages.  The  Venezu- 
elan Government  might  make  a  new  contract  but  it  was  not  bound  to 
do  so.  It  might  recede  from  its  suit  for  rescission,  but  it  had  a  right 
to  refuse  to  do  so.  These  were  matters  of  negotiation,  and  that  they 
resulted  unfavorably  to  the  wishes  of  the  company  is  unfortunate, 
but  it  does  not  add  to  the  pecuniary  responsibility  of  the  respondent 
Government.  The  acts  of  administrative  authorities  in  1S90  hereto- 
fore referred  to  onlj^  c^uickened  the  process  of  dissolution.  There  was 
in  it  all  no  demonstrated  financial  loss  to  the  lic{uidators  on  the  basis 
upon  which  this  award  is  to  rest.  It  was  not  the  liquidators  but  the 
Liverpool  firm,  which  was  to  reap  the  pecuniary  benefit  of  the  conces- 
sion for  1890.  To  the  suggestion  that  there  was  undue  and  unneces- 
sary loss  of  the  property  because  of  the  acts  done  or  permitted  by  the 
respondent  Government  from  1890  to  1893,  both  inclusive,  there  is 
this  answer,  that  the  award  practically  covers  that  investment  so  far 
as  the  liquidators  are  concerned,  and  it  is  impossible  from  the  data  at 
hand  to  arrive  at  any  just  conclusions  concerning  the  pecuniarj-^  loss, 
if  it  were  proper  or  necessar}' to  consider  it  at  all.  To  the  possible  sug- 
gestion that  the  arrangement  with  the  English  company  might  have 
proved  illusory,  when  the  suit  for  rescission  had  become  known  to  this 
latter  company,  there  is  the  answer  that  there  was  then  ample  grounds 
for  the  successfiü  defense  of  that  suit,  had  defense  been  the  desired  polic}' 
of  the  company.  A  fidl  defense  lies  in  the  fact  that  there  was  in  this 
suit  for  rescission  no  oft'er  to  restore  to  the  company  the  benefits  con- 
ferred by  it  upon  the  plaintiff  when  coupled  with  the  uncontroverted 
fa-zt  that  the  companj'  had  conferred  many  and  repeated  benefits  upon 
the  plaintiff  Government,  which  were  capable  of  being  measured  in 
money,  and  for  which  there  had  been  no  compensation.  Notably 
among  these  benefits  is  the  one  stated  in  the  suit  itself,  where  it  refers 
to  the  amount  paid  by  the  company  to  the  Government  under  its  con- 


864  COMPANY    (íKNKKAL    oF    THK    oRlXoPo    CASE. 

tructs  for  the  oxploitation  ami  i'X|)<)rtati()ii  of  ¡lulia  rubber  ami  sarra- 
pia.     {24  Kncyd.  of  Law,  621.) 

Many  otlier  o(|iially  ])ertineiit  easily  discerned  farts  in  the  historical 
data  are  broiif;ht  into  this  case,  in  the  opinion  of  the  umpire.  It  is  not 
necessary  to  do  more  than  to  refer  to  them  in  this  general  way.  Again, 
it  was  easily  suscej)ti])le  of  j^roof  that  the  respondent  (rovemment 
could  not  sustain  its  contention  that  it  was  without  fault  in  the  prem- 
ises, and  this  is  an  essential  fact  which  must  always  precede  and 
accompany  a  suit  for  rescission  and  without  which  there  must  always 
be  judgment  for  the  defendant. 

In  the  Encycl.  of  PL  and  Pr.,  vol.  18,  page  752,  there  is  laid  down 
this  general  proposition: 

The  right  to  rescind  Ijolongs  only  to  the  party  who  is  liirnself  witlioiit  defaiih .  Thus,  if  one 
having  sufTicient  ground  therefor  wishes  to  avoid  a  contract,  hut  has  done  some  act  wliicli 
hinders  performance  by  the  other,  or  has  failed  in  any  way  to  perform  his  own  part  of  the 
stipidations,  his  riglit  is  thereby  lost  to  him. 

What  were  these  defaults  of  the  respondent  Government?  There 
was  the  Colombian  incident  ])nstling  with  points  along  this  line;  there 
was  the  decree  of  the  minister  of  hacienda  of  Maj'  17,  1890;  there 
were  the  unrecompensed  requisitions  of  1888  and  1889;  the  decree 
not  disailirmed,  not  annulled,  of  Governor  Larrazabal,  October  31, 
1888,  an  indisputable  attack  upon  the  terms  of  the  contract;  the 
absorption  of  the  workmen  of  the  company  at  Caura  for  the  national 
defense,  which,  while  proper,  if  necessary  as  an  act  of  sovereignty, 
was  none  the  less  an  attack  upon  the  terms  of  the  contract,  when  the 
Government  is  viewed  in  its  proper  position  as  the  other  party  thereto  ; 
its  neglect  to  allot  or  designate  lands  for  immigrants  as  and  when 
requested;  its  neglect  to  allot  or  designate  lands  for  agricidtural  pm- 
poses  as  and  when  requested;  the  traille  in  india  rubber  enteretl  into 
by  Governor  d'Aubeterre  in  direct  contravention  of  the  exclusive 
privileges  inherent  in  the  company  imder  this  contract,  and  t)ther 
incidents  not  so  important,  which,  taken  together,  add  force  antl  value, 
yet  need  not  liere  ])e  brought  forward. 

The  umpire  is  convinced  that  with  these  facts  proven  before  it  the 
high  Federal  court  would  have  rendered  a  judgment  for  the  defendant . 
Certainly  a  coin*ageous  com]>any,  conversant  with  these  facts,  would 
not  have  regarded  the  retention  of  the  contracts  as  a  very  (l('l)atnblc 
proposition,  and  for  that  reason  alone  would  no!  lunc  regarded  them 
as  of  insignificant  value.  This  point  is  adverted  to  oidy  that  there 
may  be  negatived  any  proposition  that  on  knowledge  of  the  suit  for 
re.scission  the  British  company  might  have  refused  to  go  on  with  its 
contract  on  the  terms  agreed  upon.  This  ¡xjsition  of  the  umpire 
does  not  at  all  rellect  upon  the  action  of  the  high  Federal  comt , 
which  proceeded  to  pass  its  decree  upon  tli(>  facts  which  were  beft>re 
it  and  U|)on  a  cause  whose  defense  had  been  abandoned  because  its 
mana<rer  believed  that  in  n('!.''otial  ions  I  here  existed  the  better  recourse. 


OPINION    OF    THE    UMPIRE.  365 

What  were  the  damages  suffered  by  the  claimant  company  because 
of  the  injury  it  received  through  the  action  of  the  respondent  Govern- 
ment in  reference  to  the  contract  with  the  British  company?  These 
damages  were  substantially  the  value  of  the  concession  at  that  time. 
There  are  minor  matters  which  if  defmitely  known  in  character, 
amount,  and  value  might  be  considered,  reckoned  with,  and  deducted 
from  this  sum,  but  they  are  left  all  too  vague  to  be  of  evidential  value, 
and  hence  they  are  omitted  from  consideration.  Approximate  ecpiity 
is  all  that  can  be  required  and  all  that  can  be  gained  from  a  case  so 
indefinite  in  many  of  its  important  facts.  Substantially  the  property 
of  the  company  was  dispersed  and  disposed  of  to  its  entire  loss,  though 
its  inability  was  not  through  any  inherent  weakness  of  its  own,  but 
resulted  from  the  conditions  which  environed.it.  In  1890  it  was  in  a 
situation  to  be  relieved  of  its  indebtedness  through  aid  of  the  British 
company.  The  sovereign  act  of  the  respondent  Government  pre- 
vented this.  There  is  no  inequity  if  that  Government  be  asked  to 
take  up  the  load  just  as  it  was  when  this  act  of  sovereignty  was 
interposed.  The  value  of  the  concession  may  certainly  be  regarded 
as  equivalent  to  the  sum  which  the  British  company  was  about  to 
pay  for  it.  That  sum  was  the  amount  of  its  indebtedness  at  that 
time,  which  was  stated  at  1,636,078.17  francs,  to  which  may  be  added 
25,000  francs,  the  sum  representing  the  expense  attending  the  contract 
with  the  British  company,  which  was  thwarted  by  the  intervention 
of  the  respondent  Government.  This  makes  the  sum  of  1,661,078.17 
francs.  To  this  interest  for  fifteen  years  will  be  added  747,485.18 
francs,  which  is  the  approximate  length  of  time  during  which  this 
sum  has  been  in  default,  making  a  sum  total  of  2,408,56.3.35  francs, 
for  which  sum  the  awartl  will  be  drawn. 

These  figures  were  gathered  from  a  statement  made  by  the  liqui- 
dators, L.  Roux,  F.  Vial,  and  A.  Boulissière  to  the  minister  of  foreign 
afi'airs  at  Paris,  July  10,  1902.  They  comprise  all  of  the  principal 
sums  there  named,  but  exclusive  of  the  interest  reckoned^  except  the 
charge  for  the  liquidation  bonds,  the  expenses  of  the  Belgian  society, 
and  the  diflerent  expenses,  salaries  of  employees  unpaid  since  1891. 
The  latter  item  falls  outside  of  the  indebtedness  in  1890,  and  the 
umpire  understands  the  same  to  be  true  of  the  lif|uidation  bonds, 
which  were  for  that  reason  excluded.  The  reason  for  excluding  the 
expenses  of  the  Belgian  society  have  already  been  stated  in  the 
opinion.  This  conclusion  has  the  approval  of  Manager  Delort,  who 
said  to  the  Government  at  Caracas,  November,  1894,  that  it  was  only 
the  indebtedness  of  the  company  which  he  asked  to  have  canceled 
in  order  that  the  honor  of  the  company  and  of  its  shareholders  might 
be  sustained.  Then,  again,  this  claim  may  properly  be  regarded  in 
a  limited  sense  as  of  the  nature  of  a  creditor's  bill,  the  purpose  of 
which  is  to  recover  that  which  is  tlue  for  the  benefit  of  the  creditors 
that  it  may  be  distributed  pro  rata  among  them,  but  the  controlling 


366  COMPANY    GENERAL    OK    THE    OKINOCO    CASE. 

reason  is  the  one  stated  in  the  lirst  instance,  that  it  appears  to  be 
the  value  of  the  property  destroyed  by  tlie  act  of  the  Government. 

The  umpire  has  considered  the  propriety  and  importance  of  deduct- 
ing from  the  sum  allowed  the  damages  assessed  against  the  company 
in  a  suit  for  rescission.  But  he  can  not  disregard  the  fact  that  tho 
respondent  Government  in  its  suit  for  rescission  admitted  the  receipt 
of  148,109.74  l)olivars  as  its  share  of  the  products  exported  in  accord- 
ance with  the  rescinded  contracts  and  recovered  its  damages  solely 
on  the  ground  that  the  goods  imported  free  would,  but  for  the  con- 
tracts, haA^e  paid  a  duty  to  the  amount  claimed.  Neither  can  he  fail 
to  consider  that,  except  for  the  rescinded  contracts,  the  respondent 
Government  would  have  received  no  part  of  the  148,199.74  bolivars, 
and  that  no  part  of  the  goods  in  (¡uestion  would  have  been  imported. 
It  seems,  therefore,  e(|uitable  that  the  sum  set  as  damages  against 
the  company  in  the  suit  for  rescission  be  assimilated  in  and  absorbed 
by  the  sums  which  the  respondent  Government  directly  received 
from  the  company  solely  because  of  the  existence  of  said  rescinded 
contracts.  Hence  the  umpire  has  decided  to  make  no  such  deduction 
and  has  therefore  placed  the  award  at  the  amount  above  written. 

NoRTiiFiELD,  Julyi  31,  1905. 


CLAIM  OF  THE  FRENCH  COMPANY  OF  VENEZUELAN  RAIL- 
ROADS.—No.  8." 


HEAD  NOTES. 


It  was  one  of  the  claims  of  the  coinpauy  tliat  the  respondent  Government  should  be  awarded 
to  paj'  France  18,483,000;  (1)  on  the  basis  that  it  was  responsible  for  the  company's 
ruin;  (2)  that  the  company  renounce  its  concession  and  abandon  its  enterprise  to  the 
respondent  Government,  including  all  its  properties.  The  umpire  failing  to  find  the 
respondent  Government  responsitjle  foi-  the  ruin  of  the  company,  the  simi  claimed  can- 
not be  allowed  upon  that  basis. 

a  EXTRACT   FROM   THE   MINUTES   OF   THE    SITTING   OF   AUGUST  28,  1903. 

The  examination  of  the  claim  of  the  French  Company  of  Venezuelan  Railroads,  presented 
at  the  sitting  of  May  19  last  and  amounting  to  the  sum  of  18,483,000  bolivars,  was  then  taken 
up. 

The  French  arbitrator  considering: 

That  the  nonexecution  of  the  oi)ligations  contracted  l)y  the  ^'enezuelan  Government  with 
the  company  and  the  nonpayment  of  sums  which  it  owed  it  from  the  fact  of  its  engagements, 
and  its  requi.sitions  carried  on,  has  rendered  the  company  unable  to  continue  its  exploitation; 

That  the  inspection  of  the  line,  of  the  material,  and  of  the  buildings  demonstrates  clearly 
that  the  company  had  not  recoiled  before  any  expense  to  as.sure  excellent  conditions,  the 
service  of  merchandise  and  travelers; 

That  the  examination  of  the  accounts  establishes  that  the  exploitation  would  have  been 
remunerative  in  spite  of  the  obstacles  presented  by  the  civil  war  and  the  inclemencies  of  the 
climate  if  the  Venezuelan  Government  had  paid  over  the  amounts  due  from  it  and  that  con- 
sequently by  the  act  of  the  Venezuelan  Government  the  company  has  been  deprived  of  the 
legitimate  benefits  which  it  had  the  right  to  hope  for; 

That  according  to  the  said  contract  the  Venezuelan  Government  having  accorded  a  guar- 
anty of  7  per  cent  upon  a  kilometric  value  of  300,000  bolivars,  has  itself  implicitly  recognized 
that  the  value  of  the  exploitation  was  18,000,000  bolivars; 

That  the  Venezuelan  Government  seems  to  have  had  the  intention  of  annulling  the  con- 
tract and  of  according  the  concession  to  a  new  enterprise; 

That  the  company's  claim  for  indemnity  for  the  damages  suffered  by  its  maritime  service 
from  Maracaibo  to  Santa  Bárbara  is  perfectly  justified; 

Decides  that  the  Venezuelan  Government  ought  to  pay  to  the  French  Company  of  Vene- 
zuelan Railroads  the  sum  of  18,483,000  bolivars  demanded  by  it,  on  condition  that  the  latter 
renounce  the  concession  of  the  enterprise  and  abandons  to  the  Venezuelan  Government  its 
line,  its  buildings  of  exploitation  and  habitation,  its  stores,  and  its  terrestrial  and  maritime 
material  in  the  condition  which  they  are  found,  by  means  of  which  payment,  renunciation, 
and  abandon  the  two  parties  will  be  free  from  all  their  reciprocal  engagements  and  obliga- 
tions. 

The  Venezuelan  arbitrator  considering,  on  the  contrary  : 

That  the  true  reasons  for  the  suspension  of  the  exploitation  of  the  line  by  the  company- 
are  of  economic  order,  the  latter  having  been  led  to  take  tliis  resolve  because  of  the  lack  of 

367 


8(i8       FRENCH    COMPANY    (»F    V?:NEZrELAN    RAILROADS    CASE. 

To  determine  the  other  question,  tlie  power  of  the  commission  under  the  protocol  of  Fe]>- 
ruarv  19,  1902,  must  Ije  determined.  He  fails  to  find  such  power,  but  finds  it  limited 
to  providing  indemnities  for  damages  suffered  by  Frenchmen  in  Venezuela.  To  accom- 
plish this,  its  methods  of  procedure  must  not  contravene  the  general  and  established 
principles  of  the  law  of  nations,  nor  its  awards  be  oppo.sed  to  justice  and  equit}-.  It  is 
given  no  power  to  revoke,  rescind,  modify,  or  limit  the  terms  of  a  contract  to  the 
very  least  degree.  Such  was  not  the  purpose  of  its  creation,  it  was  endowed  with  no 
such  powers.  Were  rescission  or  abandonment  agreed  upon  between  the  claimant 
company  and  the  respondent  Government,  then  it  might  lie  competent  for  the  com- 
mission to  establish  the  indenmities  for  such  rcscis-sion  or  abandonment. 

The  contracts  in  issue  were  mutual  and  reciprocal,  and  neither  party  can  make  abandonment 
or  rescission  without  the  consent  of  the  other.  Tlie  United  States  of  Venezuela  d<x»s 
not  consent.  Therefore  there  can  be  no  abandonment  by  the  claimant  company  of 
its  properties  for  which  redress  can  be  made  compulsory  upon  Venezuela. 

The  commission  is  utterly  powerless  even  for  good  cause  to  decree  an  unaccepted  or  an  unac- 
ceptable abandonment  by  either  party  of  a  mutual  and  reciprocal  contract,  or  to  award 
an  act  of  rescission  which  has  not,  in  effect,  previously  taken  place. 

This  commission  can  not  order  something  to  be  done  which  would  cause  damage  to  the 
part}'  obeying  the  order  and  then  award  damages  therefor.  This  would  be  an  injury 
received  posterior  to  the  submission  and  it  would  be  damages  in  fact  sull'ered  by  the 
claimant  company  in  the  United  States  of  Venezuela  and  at  the  hands  of  tlie  umpire. 

The  contract  between  the  claimant  company  and  the  respondent  Government  that  all 
doubts  and  controvei-sies  arising  from  that  contract  should  Ik-  resolved  by  the  compe- 
tent tribunals  of  the  respondent  Government  can  not  be  entirely  ignored.  Xo  more 
serious  doubt  can  be  resolved  than  that  involved  in  the  question  of  rescission  and  noth- 
ing «ould  more  clearly  arise  out  of  the  contract  itself  than  such  a  question.  A  claim 
for  damage  may  be  regarded  as  ulterior  to  the  contract  especially  where  the  damage 
has  accnaed  from  the  operation  of  the  parties  under  the  contract;  not  so  the  question 
of  rescission. 


traflBc  due  to  the  troubled  state  of  the  country  and  by  the  impossibility  in  which  its  bad 
financial  position  had  placed  it  of  obtaining  new  funds  necessary  to  make  repairs  for  dam- 
ages caused  by  the  inclemency  of  the  weather  to  a  line  establi.shed  under  unfavorable  condi- 
tions; 

That  the  Venezuelan  Government  could  be  held  responsible  neither  for  damages  caused  to 
the  material  of  exploitation  by  a  voluntary  abandonment  nor  for  those  suffered  from  the 
fact  of  the  troubled  condition  to  the  country-  or  of  accidents  of  war; 

That  the  arrangement  entered  into  by  the  company  with  the  Venezuelan  Government  on 
the  sulojcct  of  the  guaranty  stipulated  in  the  contract  has  been  entirely  carried  out  and  that 
the  company  has  received  the  sums  accruing  from  the  sale  of  the  bonds  which  have  l)een 
remitted  to  it  in  execution  of  the  said  arrangement: 

That  the  \'enezuelan  Government  has  never  refused  to  reinil)urse  tlio  ('(tmiiany  for  the 
requisitions  and  damages  caused  by  them  to  the  material,  and  tliat  tlie  impossibility  in 
which  it  finds  itself  of  making  tiiis  reimixirsement  as  tlie  result  of  the  penury  of  the  treasury 
in  the  course  of  the  civil  war  ol)lrges  it  only  to  pay  interest  after  demaiul: 

Decides  that  the  claim  of  the  company  is  without  fovmdation. 

It  recognizes  only  the  right  to  an  indemnity  of  10,()(X)  bolivai-s  for  damages  done  to  their 
.steamer  Sania  Bárbara  during  the  time  when  it  was  requisitioned,  and  reserves  for  it  the 
privilege  of  claiming  from  the  Venezuelan  Government,  by  presenting  the  necessary  pnwfs, 
the  sums  due  for  the  re{|ui.sitioiis,  with  interest  corresponding.  It  equally  reserves  the  right 
of  the  Venezuelan  Government  to  claim  for  the  fact  of  the  aban<lonmenl  of  the  expKiitation. 

Consequcnlly.  after  a  short  discussion,  it  is  agreed  thai  thi'  claim  of  the  French  ("ompany 
of  Venezuelan  Kailroads  .shall  be  .submitted  to  the  examination  of  the  third  arbitrator. 


OPINION    OF    VENEZUELAN    COMMISSIONER.  369 

The  protocol  of  Febmary  19,  1902,  concerning  itself  only  in  the  question  of  damages  suffered 
by  Frenchmen  in  Venezuela,  can  in  no  sense  be  regarded  as  a  claim  on  the  part  of 
France  or  consent  on  the  part  of  Venezuela  that  these  restrictive  features  of  a  contract 
are  to  be  abandoned  when  it  affects  questions  like  the  one  here  being  considered.  Nor 
does  it  in  any  way  tend  to  give  the  power  to  rescind  were  no  such  restrictive  features  to 
be  found.  It  being  determined  therefore  by  the  umpire  that  he  can  not  declare  or 
direct  rescission  or  abandonment,  but  can  only  .settle  the  question  of  damages  which  had 
been  suffered  by  Frenclunen  in  Venezuela  where  he  finds  responsil)ility  in  the  respond- 
ent Government,  it  follows  that  the  .second  basis  for  the  claim  of  1N,4S;5.()(K)  francs  fails, 
and  the  award  can  not  be  made  for  such  sum. 

Neither  is  the  claim  of  the  companj^  considered  sound  that  the  contract  of  April  18,  1896, 
should  be  declared  void  in  equity  for  want  of  adequate  consideration,  as  being  made 
against  the  desire  of  the  company,  and  under  irresistible  compulsion  of  circumstances 
which  were  availed  of  by  the  respondent  Government  to  drive  an  uncon.scionable  and 
hard  bargain,  for  the  umpire  finds  a  consideiation,  also  an  apparent  desire  on  the  part 
of  the  company  to  make  the  contract,  and  does  not  find  the  compulsion  of  circumstances 
which  is  referred  to  and  claimed  bj'  the  company.  The  transaction  was  open,  the 
negotiations  lengthy,  the  time  for  reflections  ample,  and  the  action  of  the  company 
taken  under  circumstances  which  permitted  entire  freedom  of  will  and  of  conduct. 

Courts  are  loath  to  interfere  where  there  is  an  executed  contract,  where  there  are  lacking, 
the  elements  of  fraud  or  mistake,  and  where  it  rests  in  fact  upon  the  mutual  assent  of 
parties  intelligent,  competent,  and  free  to  contract.  It  is  also  negatively  held  by  the 
umpire,  because  the  company  appropriated  the  fund  paid  it  in  redemption  by  the  Gov- 
ernment after  a  great  length  of  time  and  opportunity  for  observation,  investigation,  and 
reflection,  thus  placing  itself  in  a  situation  where  it  could  not  restore  th(>  status  quo  by 
returning  the  funds. 

It  is  also  held  negatively,  becau.se  there  is  no  ofi'er  to  restore,  and  if  there  were  offer  to  re- 
store, this  conmii.ssion  under  the  protocol  has  no  power  to  compel  its  acceptance. 

The  claimant  company  was  compelled  by  force  majeure  to  desist  from  its  exploitation  m  1899. 
The  respondent  Govermnent  from  the  .same  cause  was  prevented  from  paying  its  indebt- 
edness to  the  .claimant  companj^.  This  was  the  sole  cause  of  the  acts  and  neglects  of 
the  respondent  Government.  Its  first  duty  was  to  itself.  Its  own  preservation  was 
paramount.     It  had  revenues  only  sufficient  to  that  end. 

The  respondent  Government  is  not  chargeable  with  the  loss  which  came  to  the  company 
through  the  confusion  and  havoc  of  war,  or  because  there  were  none  to  ride  and  no  prod- 
ucts to  be  transported.  This  was  a  part  of  the  a.ssumed  risks  of  the  conipan}-  when  it 
entered  upon  its  exploitation.  Such  possible  disordered  conditions  of  a  country  are  all 
discounted  in  advance  by  one  who  enters  it  for  recreation  or  business. 

There  is  no  question  a.s  to  the  liabilit}'  of  the  respondent  Government  for  the  natural  and 
consequential  damages  which  resulted  to  the  railroad  properties  while  they  were  in  the 
use  and  control  of  the  titular  government.  There  is  unquestioned  responsibility  on 
the  part  of  the  respondent  Government  for  all  the  necessary  and  consequential  injuries 
which  resulted  to  the  railroads  and  its  properties  when  used  by  either  the  successful 
revolutionary  or  the  then  contending  governmental  forces. 


OPINION    OF   THE    VENEZUELAN    COMMISSIONER. 

Mr.   Albert    Revnaud,  deputy   administrator   of   the   "Compañía 

Francesa  de  Ferrocarriles  Venezolanos,"  in  a  communication  which  he 

addressed  to  his  excellency  the  minister  of  foreign  affairs  of  France, 

dated  the  21st  of  January,  1901,  introduced  before  said  department 

S.  Doe.  588,  59-1 24 


370       FRENCH    COMPANY    OF    VENEZUELAN    RAILROADS    CASE. 

the  claim  Avhicli  is  tlic  object  of  this  o])iiiion.  in  the  followin<i:  form  and 
terms: 

As  we  had  appn-hended,  during  the  fifteen  months  which  have  just  elapsed  since  we  were 
compellod  by  the  revolutionary  events  to  suspend  our  exploitation,  and  our  last  resources 
bein<;  already  exliaustcd, the  tropical  tenijx'rature  and  depredations  of  the  inhabitants  have 
almost  completely  destroyed  our  railway  and  our  immovables:  our  bridges  have  been  carried 
awav  by  the  waters;  the  rails  have  been  broken  or  twisted  by  the  falling  t)f  the  trees  and  the 
intensitv  of  vegetation:  our  warehouses  and  deposits  of  materials  have  fallen  down  or  are 
seriously  deteriorated;  our  rolling  stcnk,  deprived  of  any  care,  has  rusted  and  rotted. 

Of  our  three  steam  vessels,  one  was  used  as  tai-get  by  the  combatants  of  the  two  parties 
and  sunk;  the  second  had  sustained  serious  damage  whilst  at  the  service  of  the  Government 
of  Maracaibo,  and  wp  have  just  sold  it  for  the  twentieth  part  of  what  it  had  cost  us;  the  third 
and  at  the  same  time  the  most  important  has  remained  useless  since  several  months  past,  and 
we  have  not  been  able  to  repair  it  for  lack  of  resources.  It  must  be  in  deplorable  condition, 
which  would  rciiuire  large  expense  to  put  it  in  order. 

It  would  at  present  be  impossible  for  us  to  value  the  extent  of  the  damage  we  have  sus- 
tained and  still  more  to  estimate  the  cost  of  its  repairs. 

Tlic  \'enezuelan  authorities,  whether  or  not  legally  constituted,  have  ruined  us  by  their 
proceedings  during  the.se  last  years  and  especially  during  these  last  eighteen  months. 

From  a  financial  point  of  view,  they  have  compelled  us,  through  threats  of  grievous  cruelty 
and  imprisonment  of  our  agents,  to  employ  only  at  their  service  the  last  resources  of  our 
company. 

From  a  conunercial  and  industrial  point  of  view,  they  have  placed  us  in  the  impossibility 
of  carrying  on  our  double  exploitation  of  the  railway  and  the  steamers  by  violently  taking 
possession  of  our  material  and  our  per.sonnel. 

In  fact,  said  authorities  ha\c  aibitrarily  disposses-sed  us  of  our  rights  and  of  our 
property. 

We  shall  not  be  able  to  prevent  them  from  letaining  what  they  have  taken  from  us  or 
deteriorated,  but  we  consider  it  to  be  conformable  to  the  most  vulgar  equity  that  they 
reimburse  to  us  its  market  value. 

To  fix  that  value  we  could  not  make  a  more  moderate  and  less  discussable  estimation 
than  the  one  the  Venezuelan  authorities  themselves  have  fixed  in  their  Congress  of  1891. 

By  the  concession  granted  us  by  the  Venezuelan  Government  the  latter  thought  it  its 
duty  to  assign  to  us  an  interest  guaranty  of  7  per  cent  on  a  capital  of  300,000  francs  per 
kilometer.  The  length  of  our  line  was  GO  kilometers;  the  estimation  of  the  value  of  our 
railway  amounted,  therefore,  according  to  that  calculation,  to  1S,000,(XX)  francs.  That  sum 
Venezuela  owes  us  for  the  railway. 

It  also  owes  us  an  indemnity  for  the  loss  or  detention  of  our  vessels.  (This  indemnity  the 
companj'  has  fixed,  of  late,  at  the  sum  of  483,000  francs.) 

We  again  apply,  Monsieur  le  Ministre,  to  your  high  and  j)owerful  intervention  to  obtain 
from  the  Venezuelan  authorities  the  payment  of  that  sum,  reduced  to  its  minimum.  We  do 
not  think  we  must  insist  upon  the  importance  which  that  restitution  has  for  the  Fivnch 
holders  of  our  .shares,  "^'ou  know  the  sad  situations  through  which  our  company  has  passed 
since  its  creation.  We  ask,  however,  that  you  should  allow  us  to  tell  you  the  present 
moment  is,  in  our  judgment,  the  most  opportune  to  act.  The  Government  of  General 
Castro,  according  to  the  latest  news,  desires,  it  appears,  to  reorganize  the  \'enezuclan  credit. 

The  German  ami  American  authorities  have  expressed  and  continue  to  expn-.ss  their  will 
to  cause  t  heir  sui)jects  and  citizens  to  be  paid  what  is  owed  them. 

We  do  not  d<)ul)t  but  that  the  French  Govermnent  will  act  in  the  same  niannei'. 

Ill  the  fofeo^oin»;  statciiiciit  the  facts  are  suinmari/ed  upon  wiiicli 
the  (Iciiiaiid  of  iiideimiil y  aicaiiist  \'eiic/iiela  rests,  as  well  as  tiie  man- 
ner in  which  the  aiuoiint  of  that  liahility  with  reference  to  the  railwa\ 
has  l>een  aj)])reciated;  and  re^ardino;  the  steamers  that  were  at   the 


OPINION    OB'    VENEZUELAN    COMMISSIONER.  371 

service  of  the  company  the  indemnity  is  based  on  the  primitive  cost 
of  said  vessels,  deductinji  the  sum  of  11,100  francs  whicli  (lie  company 
received  for  the  sale  of  two  of  said  steamers,  the  Reliance  and  the 
Santa  Barbara. 

The  representative  of  the  Venezuelan  Government,  in  his  reply  to  the 
foregoing  claim,  denies  any  proving  force  to  the  documents  presented 
by  the  company,  as  it  only  consists  in  a  statement  of  facts  which  the 
company  itself  narrates  without  any  j)roof  of  the  veracity  of  its  asser- 
tions; and  said  documents,  on  the  other  hand,  far  from  being  favorable 
tt)  the  company,  offer,  on  the  contrary,  sufficient  merits  to  support 
very  serious  charges  against  the  said  enterprise  for  not  having  com- 
plied with  the  obligations  it  contracted  and  for  the  abandonment  of 
the  railway  without  any  reason  that  might  justify  a  measure  of  such  a 
significance,  which  latter  fact  renders  it  responsible  for  the  losses 
deriving  therefrom  to  the  commerce  of  the  regions  which  the  Govern- 
ment intended  to  benefit  by  the  railway  concession  in  question. 

The  agent  of  the  Venezuelan  Government  refers  in  his  reply  to  the 
technical  report  presented  by  Drs.  F.  Arroyo-Parejo  and  Ocanto,  which 
was  formulated  in  the  very  field  and  by  order  of  the  national  executive 
in  December  of  last  year,  appreciating  that  said  report  shows  clearly 
and  scientifically  that  the  larger  part  of  the  losses  sustained  by  said 
company  are  due  to  the  bad  construction  of  the  line  in  the  first  place, 
and  then  to  the  abandonment  of  it,  which  facts  are  ])roved  by  the 
official  documents  produced  by  the  Government  and  excluding  any 
responsibility  on  its  part;  that  what  he  has  said  of  the  line  must  be 
applied  to  the  steamers  the  company  had  at  its  service,  for  the  losses 
claimed  for  that  respect  are  due  to  causes  imputable  to  the  claimant, 
which  abandoned  the  exploitation  without  a  reason  warrantable  in 
law  and  without  taking  into  consideration  the  prejudice  which  by  so 
inconsiderate  a  step  it  had  to  cause  to  the  other  contracting  party, 
which  up  to  the  present  has  reserved  to  itself  the  action  which  pertains 
to  it  in  law  to  legally  claim  the  same;  that  regarding  the  other  losses 
which  the  company  says  it  sustained  on  account  of  facts  imputable  to 
armed  factions  and  enemies  of  the  public  order  raised  against  the  law- 
ful authority  of  the  Government,  it  is  a  (piestion  determined  in  accord- 
ance with  the  priiïciples  of  international  law  that  lawfully  constituted 
Governments  which  have  endeavored  by  all  the  means  at  their  disposal 
to  reestal)lish  order  and  energetically  to  afiirm  their  authority  are  not 
responsible  for  such  prejudice,  and  in  conclusion  the  representative  of 
the  Government  of  Venezuela  argues  that  the  claiming  company  itself 
is  the  cause  of  the  prejudice  which  it  says  to  have  sustained  and  of 
those  which  by  the  abandonineut  of  the  concession  it  has  caused  to 
Venezuela, 

The  points  debated  in  this  cliiiiu  liiiviug  ]n'v\\  lixcd,  it  pertains  to 
this  tribunal  to  examine  the  facts  that    may  a|)p(>ar  pioxi'd  and  to 


37*2       FKENCH    COMrANY    OF    VENEZUELAN    RAILROADS    CASE. 

estahlisli  the  rosponsihilitios  wliicli  tliose  facts  may  ori^jinate  as  sources 
of  obligations  rccij)rocally  allVcting  tlie  ])arties  interested  in  this  issue. 

The  Congress  of  the  United  wStates  of  Venezuela,  by  law  of  the  '^á  of 
August,  ISS.S.  gave  its  ap])roval  to  tlie  contract  concluded  in  Caracas 
on  the  25th  of  July.  1887,  between  the  minister  of  public  works  and 
the  Duke  of  Morny,  which  had  for  its  object  the  construction  of  a  rail- 
way from  Mérida  to  the  Lake  of  Maracaibo,  canalizing  the  rivers 
Chamas  and  Escalante,  or  some  other  navigable  river.  By  article  10 
of  said  contract  and  in  accordance  with  the  law  on  the  matter,  the 
Government  of  Venezuela  guaranteed  the  7  })er  cent  of  tlie  ca])ital  that 
the  contractor,  his  assigns,  or  successors  .should  issue  in  bonils,  .shares, 
or  obligations  in  representation  of  the  capital  of  the  company. 

On  the  13th  of  August,  1888,  Gen.  Guzman  Blanco,  envoy  extra- 
ordinary and  minister  plenipotentiary  of  \'enezuela  in  Paris,  concluded 
with  the  Duke  of  Morny  an  amplification  of  said  contract,  and  by 
article  1  of  said  am])lification  it  was  agreed  u|)on  that  the  railway  from 
Mérida  to  the  Lake  of  Maracaibo  would  be  divided  into  two  section.s — 
the  first,  starting  from  the  point  on  the  Escalante  River  which  the 
concessionary  would  determine  and  developing  in  a  length  of  GO  kilo- 
meters in  the  direction  of  Mérida;  and  the  second  .section,  starting  fn)m 
the  terminal  point  of  the  first  up  to  the  city  of  Mérida.  By  article  4  it 
was  agreed  upon  that  on  the  opening  of  the  first  section  of  60  kilometers 
to  the  exploitation  the  guaranty' provi<led  for  would  be  definitively 
accjuired  by  that  first  part  of  the  line;  by  article  7  it  remained  estab- 
lished that  the  Government  of  the  Ignited  States  of  Venezuela  guar- 
anteed the  7  per  cent  of  the  capital  of  the  company,  which  capital 
rei^ained  ñ"om  that  moment  fixed  at  300,000  bolivars  per  kilometer 
for  the  60  kilometers  of  the  first  section  and  at  3.50,000  bolivars  for 
each  kilometer  of  the  second  section. 

By  a  communication  which  the  same  Gen.  Guzman  Blanco  addressed 
on  the  9th  of  November,  1888,  to  the  minister  oí  ])ublic  works,  this 
oilicial  was  notified  that  the  Duke  of  Morny  had  on  the  28th  of  Sep- 
tember of  the  same  year  transferred  to  the  "Compagnie  Française  de 
Chemins  de  Fer  Vénézuéliens"  the  rights  which  the  contract  of  the 
251  li  of  July,  1887,  vested  in  him. 

The  Congress  of  \'en(v.uela  approved  on  the  18th  T)f  June,  1891,  the 
contract  concluded  by  tlie  minister  of  public  works  on  the  16th of 
Aj)ril,  1891,  with  Mr.  Cliarles  Weber,  the  representative  of  the  "Com- 
])agnie  Fraiu/aise  d(>  Chemins  de  Fer  Vénézuéliens,"  modifying  that 
of  the  25(li  of  »Iul\  ,  ISST,  which  modilicalion  contains  the  t  hree  follow- 
ing art  leles: 

Auiici.K  1.  'I'lic  (•nii(t's,sii)ii  sliiill  K'lii.nii  ctiiiliticd  til  the  lirsl  scclioii  of  sixt\  kiloiuoti-i-s, 
wliicli  will  cxtciid  from  Sniitii  liáilmni  lo  llic  lii^li  lond,  :il  ;i  poinl  one  Uiloriiclci-  distant 
I'lom  ]jh  Vit;iii,  wluMc  the  line  will  (iTiiiinalc. 

.\itr.  2.  Tlu>  piiyincnt  of  the  •;iiaraiit('<>  shall  be  niadi' at  the  clos»' of  cacli  (|iiailt'r  of  cxploi- 
tiition  in  acionlanrii  witli  llu-  primitive  conlracls.     The  .sum  owed  to  the  eompany  .shall  he 


OPINION    OF    VENEZUELAN    COMMISSIONER.  373 

calculated  at  the  rato  of  7  per  cent  on  tlie  sum  lixed  in  llie  condiicl  of  the  i;}tli  of  Au<¡;u.st, 
1888,  after  deducting  the  net  profits  realized  hy  th(^  exploitation.  These  ])rolits  will  he  the 
net  proceeds  of  the  receipts  of  any  kind  that  the  exploitation  of  tlui  railway  may  obtain 
after  deducting  the  general  expense  of  the  company  and  the  exploitation  expense. 

Art.  3.  The  sums  that  shall  be  paid  to  the  company  by  way  of  int(!rest  guarantee  will 
constitute  but  advances  which  the  Government  of  Venezuela  has  a  right  to  be  reimbursed,  as 
follows:  Wlien  the  profits  realized  by  the  company  in  the  exploitation  of  the  railway  will 
exceed  the  7  per  cent  on  the  capital  guaranteed,  the  Govermnent  will  have  one-half  of  the 
svu-j)lus  until  the  entire  reimbursement  of  its  advances;  when  the  Gov(>rnment  shall  have 
been  reimbursed  said  advances,  it  will  continue  to  participate  in  the  profits  to  wliich  this 
article  lefers  until  completing  the  20  per  cent  thereof. 

The  company  also  obtained  l)y  said  concession  exemptions  of  duties 
for  the  importation  of  all  its  material,  machines,  implements,  and 
other  things  necessary  for  the  construction  and  exploitation  of  the 
railway,  and  in  fee  simple  a  zone  of  500  meters  of  land  on  each  side  of 
the  line  of  the  one  pertaining  to  the  nation  without  any  indemnifica- 
tion; it  was,  moreover,  granted  it  that  the  wood  necessary  to  the  com- 
pany for  the  construction  works  of  the  line  might  be  freely  taken  in 
the  national  woods  and  that  the  company  would  not,  at  any  time,  be 
burdened  with  national  or  State  taxes.  There  was  also  secured  to  the 
company  by  said  contract  the  exploitation  and  enjoyment  of  the  reve- 
nue of  the  enterprise  during  ninety-nine  years,  at  the  end  of  which  it 
was  to  become  with  all  its  appurtenances  the  property  of  the  nation 
without  any  indemnification.  In  return  the  company  agreed  to  termi- 
nate the  work  undertaken  within  a  term  of  two  years  from  the  13th  of 
August,  1888,  excepting  that  a  compensation  would  be  given,  if  nec- 
essary, for  loss  of  time  occasioned  by  main  force;  to  transport  the  mail 
free  of  charge,  and,  for  one-half  of  the  tarifi^  price,  which  would  be 
established,  the  employees  on  commission,  the  military  officers  on  service 
and  the  troops  and  war  ammunitions. 

The  '^ Compagnie  Française  de  Chemins  de  Fer  Vénézuéliens"  was 
constituted  in  Paris  on  the  28th  of  September,  1888,  with  a  share 
capital  of  300,000  ft-ancs,  the  Duke  of  Morny  contributing  thereto  the 
railway  concession  to  wliich  the  above  contracts  refer. 

The  construction  of  the  railway,  from  the  port  of  Santa  Barbara  to 
the  inland  having  been  undertaken  early  in  January,  1889,  as  appears 
from  a  note  addressed  by  the  president  of  the  company,  under  date  of 
the  3d  of  January,  1880,  to  Gen.  Guzman  Illanco,  the  works  went  on 
with  frequent  mterruptions  and  serious  irregularities,  such  as  the 
freshet  of  the  Escalante  River  in  January,  1890,  which  completely 
inundated  all  the  works  of  the  line,  its  warehouses,  deposits  of  materials 
and  offices  at  Santa  Bárbara,  compelling  the  company  to  absolutely 
suspend  the  works. 

The  report  presented  on  that  account  by  ^Ir.  A.  Lacasette,  cliief 
engineer  of  the  railway,  to  the  ministry  of  public  works,  found  on  pages 
126  and  136  of  the  piece  of  records  No.  1  of  the  papers  which  said  min- 
ister has  handed  to  this  commission  for  its  examination,  details,  in  all 


374       FRENCH    COMPANY    OF    VENEZUELAN    RAILROADS    CASE. 

itsc'xU'iit,  thedaiuajic  caused  hy  tlic  said  inundation,  and  concludes  by 
asking  for  an  extension  of  one  year  to  comply  yâth.  the  engaf^ement 
contracted  by  the  coni])any.  which  extension  was  granted  by  the 
Government. 

By  the  month  of  ^hlrch,  1S91,  according  to  the  report  of  the 
inspector  of  the  railway,  transmitted  l)y  the  President  of  the  State  of 
Maracaibo,  with  a  note  addressed  to  the  minister  of  public  works,  the 
locomotive  arrived  at  the  site  called  "Los  Cañitos,"  distant  50  kilome- 
ters more  or  less  from  the  Santa  Bárbara  station,  the  starting  point. 

On  the  30th  of  September,  1891,  according  to  a  telegram  addressed 
by  the  Suine  inspector  to  the  ministry  of  public  works,  it  wüs  commu- 
nicated that  the  locomotives  had  arrived  at  kilometer  56,  but  soon 
after,  in  the  month  of  October  of  the  same  year,  according  to  report 
subscribed  by  the  chief  engineer  of  the  line,  Mr.  Curau,  inserted  on 
page  66  of  the  piece  of  records  No.  1  bis,  a  great  flood  produced  by  the 
swells  of  Cañonegro  River  made  the  water  fall  on  the  railway  line  on  a 
width  of  more  than  2  kilometers,  and  on  account  of  their  extreme 
violence  the  currents  destroyed  everything  on  the  way  and  covered  the 
distance  from  49.50  to  51.60  kilometers  up  to  a  height  of  50  centime- 
ters and  more.  In  said  report  it  is  added  that  the  inundation  also 
threatened  the  Cañonegro  station,  the  one  that  was  established  on  the 
liighest  land  and  on  wliich  many  installations  had  been  made.  It  was 
impossible  to  save  a  train  formed  by  a  locomotive  and  tlu-ee  platforms. 
This  situation  forced  the  company  to  suspend  the  exploitation  beyond 
kilometer  48,  it  only  remaining  between  Santa  Bárbara  and  Los 
Cañitos. 

In  a  telegram  of  the  21st  of  the  same  month  the  inspector  announces 
to  the  minister  of  pul^lic  works  that  the  inundation  having  continued 
with  heavier  force,  the  Cañonegro  station  had  disappeared,  as  well  as 
the  locomotive  that  was  there,  the  whole  space  being  now  converted 
into  a  marsh  with  very  powerfid  current. 

The  works  of  reconstruction  at  50  to  53  kilometers,  which  were  inim- 
dated,  lasted,  according  to  the  reports  and  returns  sent  by  the  com- 
pany to  the  ministry  of  public  works,  until  the  month  of  August,  1892, 
there  having  arrived  at  the  La  Vigia  station,  on  the  28th  of  July  of  the 
same  year,  a  train  that  inaugurated  the  traflic  between  the  initial 
station  at  Santa  Bárbara  and  the  terminal  station  at  kilometer  60. 

The  company  being  unable  to  pay  in  November,  1892,  the  coupon 
of  the  obligations  it  had  contracted  to  meet  the  expense  of  the  estab- 
lishment of  the  enterprise,  asked  for  the  benefit  of  the  French  law  of 
the  4th  of  May,  1889,  and  obtained  the  ai>pointment  of  a  judicial 
liquidator.  At  the  same  time,  and  having  hatl  to  enter  into  new 
engagements  with  the  Tives-Lille  C()m])any  and  Dyle  &  Bacalan  Works 
Company  (Limited),  it  was  owing  said  company,  according  to  the 
balance  of  the  29th  of  October,  1892,  the  sum  of  864.482. t)9  francs.  In 
the  impossibility  to  meet  tliis  debt,  it  asked  for  an  agreement  with  its 


OPINION    OF    VENEZUELAN    COMMISSIONER.  375 

creditors,  jiroposin^  the  exchange  of  the  old  obligations  for  an  equiva- 
lent niimbor  of  the  new  ones,  to  which  the  distribution  of  the  assets 
would  entitle  them,  or,  in  ciise  of  the  nonacceptance  of  that  proposal, 
the  payment  of  the  20  per  cent  of  their  credits  in  fifty  annuities. 
Besides,  it  was  proposed  that  the  contractors  of  the  construction,  the 
only  creditors  of  the  company  besides  the  bondholders,  would  be 
entitled  to  receive  as  many  new  obligations  as  the  amount  of  their 
chirographic  credit  would  contain,  3S2.25  francs.  This  agreement 
having  been  approved,  the  liabilities  of  the  coin})any  were  represented, 
according  to  the  balance  of  the  31st  of  December,  1893,  in  the  follow- 
ing manner: 

Francs. 

Shares " 3, 000, 000. 00 

Obligations  : 

Francs. 

1,811  old  ones 905,  500 

42,757  new  ones 21,  378,  500 

22,284,000.00 

Sundry  debts 40,  979.  31 

To-order  accounts 42,  392.  15 

Guarantee  owed  by  the  Venezuelan  Government  from  the  1st  of  April,  1892, 

to  the  31st  of  December,  1893 2,  205,  000.  00 

Interest  due  up  to  the  31st  of  December,  1893  (obligations) 1,  781,  541.  60 

Total 29,  353,  913.  12 

On  the  1st  of  May,  1893,  the  official  inauguration  of  the  railway 
from  Santa  Bárbara  to  La  Vigia,  ordered  by  the  Government  of  Vene- 
zuela, took  place,  and  the  exploitation  service  of  the  whole  line,  which 
had  not  undergone  any  interruption  during  the  administrative  year  of 

1893,  was  violently  interrupted  about  the  close  of  the  month  of  April, 

1894,  by  the  earthquake  which  occurred  in  that  region.  The  extraor- 
dinary violence  of  the  seismic  phenomenon  caused  the  line  to  be 
injured  through  the  fall  of  large  trees,  and  the  superposed  works,  as 
bridges  and  buildings,  to  be  destroyed,  and  the  traffic  entirely 
paralyzed. 

It  was  necessary  at  any  price  to  remedy  without  delay  this  situation,  for,  if  the  railway 
was  left  in  such  a  condition,  the  power  of  vegetation  in  Venezuela  and  the  action  of  the 
tropical  rains  would  speedily  entirely  destroy  it  and  render  any  construction  very  difficult. 

The  available  resources  being  insufficient,  a  loan  is  indispensable. 

Consequently,  we  have  at  once  convened  the  gentlemen  connuissaries  for  the  execution  of 
the  agreement  and  obtained  from  them,  as  the  representatives  of  the  bondholders,  the 
authorization  to  contract  for  an  efïective  loan  for  300,000  francs,  which  .sum  was  considered 
by  common  accord  as  the  maximum  for  the  reestablishment  of  the  exploitation.  According  to 
the  data  furnished  bj'  the  direction  in  Venezuela,  we  therefore  propose  to  create  lionds  for  a 
nominal  value  of  500  francs  each,  bearing  interest  at  the  rate  of  6  per  cent,  which  bonds 
shall  be  redeemed  within  the  maximum  term  of  ten  years.  (Rapport  du  Conseil  d'Admin- 
istration, 189^.) 

The  debt  contracted  by  the  company  to  make  the  repairs  occa- 
sioned by  the  earthquake  of  1894  did  not  confine  itself  to  the  sum  of 
300,000  francs,  which  had  been  considered  as  the  maximum,  but 


37<)       FRENCH    COMPANY    OF    VENEZUELAN    RAILROADS    CASE. 

ascended  to  2.000,000  francs,  as  appearing  from  tlio  following  para- 
graplis  of  the  report  of  the  administration  couiuil  corresponding  to  the 
year  of  1 897  : 

We  shall  rtMiiind  you,  gentlemen,  of  the  fact  that,  on  account  of  the  earthquake  of  1894  and 
of  numerous  inundations  which  were  the  consequence  thereof,  our  railway  sustained  from 
1895  to  1897  considerable  damage,  and  we  saw  ourselves  compelled,  in  order  to  raise  the 
resources  necessary  for  those  repairs,  to  create  privileged  bonds  bearing  interest  at  the  rate 
of  6  per  cent  a  3'ear,  free  from  taxes  and  redeemable  within  ten  years  at  the  latest. 

The  creation  and  issue  of  4,000  of  those  bonds,  which  constitute  the  privileged  debt  of  a 
nominal  value  of  2,000,000  francs,  have  been  successively  authorized  by  j^ou. 

The  balance  presented  on  the  31st  of  December,  1897,  oilers  for 
that  date  the  following  situation  : 

Liabilities. 

Francs. 

Shares 3, 000, 000. 00 

Obligations  (44,569) 22, 284,  .500. 00 

6  per  cent  ten-year  bonds  (4,000) 2, 000, 000. 00 

Sundiy  creditors'  accounts 102,  403. 09 

Interest  owed  to  bondholders  on  the  31st  of  December,  1896 6,  235,  175.  00 

Total 33,622,078.09 

On  the  18th  of  April,  1896,  between  the  citizen  minister  of  public 
works  of  the  United  States  of  Venezuela,  sufRciently  authorized  by  the 
President  of  the  Republic,  and  with  the  vote  of  the  Government  coun- 
cil, on  the  one  part,  and  Mr.  Charles  Weber,  representative  of  the 
"Compagnie  Française  de  Chemins  de  Fer  Vénézuéliens,"  according  to 
a  power  of  attorney  executed  before  the  notary  Dufour  and  his  col- 
league, of  Paris,  on  the  21st  day  of  March,  1898,  on  the  other  part,  a 
contract  was  entered  into  concerning  the  payment  and  redemption  of 
the  7  per  cent  guaranty,  the  preliminaries  and  definitive  provisions  of 
which  are  as  follows  : 

6597. 

Contract  entered  into  on  the  ISlh  of  April,  1896,  between  the  Government  of  the  United 
States  of  Venezuela  and  ^Ir.  Charles  Webor,  representative  of  the  "Compagnie  Franvaise  de 
Chemins  de  Fer  Vénézuéliens,"  concerning  the  payment  and  redemption  of  the  7  per  cent 
guaranty. 

Between  the  citizen  minister  of  public  works  of  the  United  States  of  \'enczucla,  sufli- 
ciently  authorized  by  the  citizen  President  of  the  Republic,  and  with  the  vote  of  the  Govern- 
ment council  on  the  one  part,  and  Mr.  Charles  Weber,  representative  of  tlie  "Compagnie 
Française  de  Chemins  de  Fer  Vénézuéliens,"  hereinafter  called  "the  company,"  according 
to  a  power  of  attorney  executed  before  the  notary  Dufour  and  his  colleague,  of  Paris,  on  the 
21st  of  March,  1.S91,  which,  duly  legalized  and  translated,  is  hereto  annexed,  the  following 
contract  has  been  concluded: 

IMIKI.I.MI.NAUIKS. 

(a)  liy  a  contract  of  the  25tii  of  July,  1SS7,  entered  into  l)etween  the  National  Goveni- 
ment  and  the  Duke  of  .Morny,and  afterwards  approved  l)y  tiie  National  Congress,  on  the.'iOtli 
July,  1888,  the  nation  granted  to  him  tiie  right  to  build  a  railway  from  Mérida  to  the  lake  of 
Maracaibo,  the  Govermnent  guaranteeing  tiie  7  per  cent  on  the  capital  that  the  contractt)r, 
his  assigns  or  successors,  should  emit  in  bonds,  shares,  or  obligations,  and  which  would  rep- 
resent the  cajjital  of  the  company. 


OPINION    OF    VENKZT'KLAN    COMMISSIONER.  377 

(b)  On  the  13th  of  August  of  the  same  year  the  tninister  plenipotentiary  of  Venezuela  in 
Europe  made  some  reformations  in  the  above-mentioned  contract,  among  which  the  ono 
that  tlie  total  line  of  the  railway  remained  divided  into  two  sections,  namely:  the  first,  start- 
ing from  a  point  on  the  Escalante  River,  at  the  discretion  of  the  concessionar},  thence  to  pro- 
ceed in  the  direction  of  Marida  on  an  extent  of  (iO  kilometers;  and  the  second,  starting  from 
the  point  where  the  first  terminates  and  proceeding  from  thence  to  the  city  of  Mérida.  And 
by  this  same  contract  of  explanation  and  amplifications  the  guaranty  of  7  per  cent  was  fixed 
on  a  capital  of  300,000  bolivars  per  kilometer  of  the  first  section  and  of  340,000  bolivai-s  per 
kilometer  of  the  second.  This  contract  was  approved  by  the  Federal  council  on  the  30th  of 
November  of  the  same  year. 

(c)  By  a  contract  of  the  17th  of  June,  1891,  reforming  those  of  the  2.'5th  of  July,  1.S87,  and 
13th  of  August ,  1S88,  Aove  cited,  the  company,  as  the  cessionary  of  the  railway  from  Mérida 
to  the  lake  of  Maracaibo,  stipulated  with  the  National  Govermnent  :  First,  that  said  conces- 
sion would  remain  confined  to  the  first  section,  to  which  the  reformation  of  the  primitive  con- 
tract refers,  according  to  paragraph  b — i.  e.,  60  kilometers  from  Santa  Bárbara  to  a  point 
distant  1  kilometer  from  El  Vigia;  second,  that  the  payment  of  the  7  per  cent  guaranty 
would  be  made  cjuarterly  on  the  simi  of  18,000,000  bolivars,  fixed  as  the  price  of  that  section, 
according  to  the  contract  of  the  13th  of  August,  1888. 

Bolivars, 
(d)  The  company  claims  from  the  National  Government  for  guaranty  due 

until  the  31st  of  December,  1895 4,  725, 000. 00 

And,  besides,  for  damage  and  other  motives,  the  following  items:  Insuffi- 
ciency of  exploitation,  according  to  returns  and  notes 396,  921 .  75 

Damage  sustained  on  account  of  the  forcible  conscription  of  the  laborers  of 

the  company 525,  .509.  57 

Requisitions  according  to  voucher 96,  320. 00 

Damage  and  prejudices  through  nonpayment  of  the  7  per  cent  guaranty, 
which  occasioned  an  emission  of  2,616  "obligations,"  supplementary,  of 
500  francs  each 1,  308, 000.  00 

which  forms  a  total  of 7, 051,  751.  32 

(Seven  million  fifty-one  thousand  seven  hundred  and  fifty-one  bolivars  and  thirty-two 
centimes.) 

The  Government  has  rejected  the  claim  of  the  guarantj*  during  the  time  elapsed  from  the 
1st  of  April,  1892  (at  which  date  the  line  could  have  been  opened  to  traffic,  if  it  had  not  been 
for  the  forcible  conscription  of  the  laborers),  to  the  1st  of  May,  1893,  the  date  of  the  official 
inauguration;  and  it  has  likewise  rejected  the  claim  of  the  sum  of  two  million  three  hundred 
and  twenty-six  tnousand  seven  hundred  and  fifty-one  bolivars  and  thirty-two  centmies 
(2,326,751.32  bolivars),  to  which  the  items  of  insufficiency,  damage,  etc.,  above  mentioned 
refer. 

The  company,  although  sustaining  in  principle  the  equity  of  the  claims  it  has  formulated, 
is  willing  to  make  important  concessions  with  a  view  to  arriving  at  an  arrangement,  and,  after 
long  discussions  regarding  the  accounts  presented,  the  Government  and  the  company,  by 
way  of  a  compromise,  have  agreed  upon  the  following: 

Art.  1.  The  company  reduces  to  one  million  nine  hundred  and  fifty  thousand  bolivars 
(1,950,000  bolivars)  the  total  amount  of  its  claims  for  the  7  per  cent  guaranty,  liquidated 
up  to  the  31st  of  December,  1895,  and  for  any  other  cause  to  which  it  may  be  entitled. 

Art.  2.  For  the  redemption  of  the  obligation  of  the  Government  to  continue  to  pay  the 
same  7  per  cent  guaranty  on  eighteen  miUion  bolivars,  guaranteed  capital,  for  the  remainder 
of  the  ninety-nine  years,  terms  of  the  contracts  referred  to,  the  company  agrees  to  receive 
two  million  five  hundred  thousand  bolivars  (2,.5(X),000  bolivars),  articles  2,  3,  and  4  of  the 
above-mentioned  contract  of  the  17th  of  June,  1891,  remaining  in  virtue  thereof  without 
any  effect. 


378       FRENCH    COMPANY    OF    VPJNEZUELAN    RAILROADS    CASE. 

.Vrt.  .'■{.  Tho  payment  of  tlip  one  and  the  other  sum  is  made  by  the  Government  in  this  act 
delivering  to  the  representative  of  the  company  an  order  on  the  direction  of  the  Disconto 
Gesellschaft  of  Berlin  for  the  sum  of  four  million  four  hundred  and  fifty  thousand  bolivars 
in  par  Injndsof  the  Venezuelan  loan  of  ISiXJ  with  6  per  cent  yearly  interest  and  1  per  cent  of 
redemption,  which  order  shall  Ix^  provided,  besides,  with  the  approval  of  the  representative 
of  the  Disconto  in  Caracas. 

Art.  4.  The  representative  pi  the  company  declares  the  nation,  therefore,  free  from  all 
responsibility,  as  well  on  account  of  the  7  per  cent  guaranty  already  due  a.s  on  account  of  the 
obligation  to  pay  that  same  sum  in  future,  and  will  repeat  this  declaration  on  the  receipt  he 
will  give  the  direction  of  the  Disconto  Gesellschaft. 

iVkt.  5.  The  company  binds  it.self  to  have,  within  the  term  of  six  months  from  the  date 
hereof,  any  imperfection  undergone  hy  the  railway  line  on  account  of  ^  chun/je  of  the  course 
of  the  Chamas  Rií'er  repaired  and  to  keep  the  line  in  vforhin^f  order  in  accordance  laith  the  obli- 
gations contracted  in  the  contracts  above  referred  to,  subject  to  the  penalties  imposed  by  the 
laws  on  the  matter. 

Art.  6.  In  all  that  is  not  contrary  to  the  provisions  of  this  agreement  the  rights  and  obli- 
gations acquired  b}'  the  company  in  virtue  of  the  preceding  contracts  herein  referred  to 
remain  in  their  perfect  force  and  vigor. 

Done  in  duplicate  to  one  same  effect  in  Caracas,  this  eighteenth  day  of  April,  one  thousand 
eight  hundred  and  ninety-six. 

(Signed)  C.  Bruzual  Serra, 

The  Minister  of  Public  Works. 
Ch.  Weber, 
The  Representative  of  the  "Compagnie  Française  de  Chemins  de  Fer  Vénézuéliens." 

By  article  5  of  the  above-inserted  convention  the  company  was 
bound  to  have,  within  a  term  of  six  months  from  the  date  of  the  com- 
promise, any  imperfections  which  the  railway  Hne  might  have  under- 
gone on  account  of  the  change  of  the  course  of  the  Chamas  River 
repaired  and  to  keep  the  line  in  working  order  in  accordance  with  the 
obligations  contracted  in  the  contracts  referred  to  and  subject  to  the 
penalties  imposed  hy  the  laws  on  the  matter. 

The  company  met  the  expenses  of  the  interest  service  and  of  the 
redemption  of  the  loan  contracted  by  it  to  meet  the  expense  of  the 
repairs  of  the  line,  occasioned  by  the  earthtjuake  of  1S94.  and  numer- 
ous inundations  which  followed  in  the  j^ears  1895  to  1S97,  with  the 
proceeds  of  the  negotiation  of  the  4,450,000  bolivars  delivered  by  the 
Government  of  VenezAiela  in  par  ])onds  of  the  Venezuelan  loan  of  the 
Disconto  Gesellschaft  of  1S9(). 

The  company  collected  the  amount  of  the  interest  and  redemption 
of  the  bonds  of  the  loan,  corresponding  to  the  half  years  due  on  the 
81st  of  December,  1896,  and  80th  of  June,  1897.  and  having  kei)t 
in  its  possession,  when  negotiating  the  bonds  in  1898,  the  interest 
coupons  due  on  the  8()th  of  June  of  that  year,  amoimting  to  about 
79,000  francs,  it  received  from  the  Disconto  (íesellschaft  on  the  15th 
of  January,  1899,  a  payment  on  account  of  28,228.94  francs,  there 
remaining,  therefore,  on  the  said  date  as  a  balance  of  interest  in 
favor  of  the  com])any  a  sum  of  about  50,000  francs. 

These  data  appear  from  the  two  reports  presented  by  the  admin- 
istration council  to  the  ordinary  general  meeting  in  its  sittings  of 


OPINION    OF    VENEZUELAN    COMMISSIONER.  379 

the  30th  of  Juno,  1898,  and  12th  of  March,  1900.     From  the  first  of 
tlieni  the  following  paragraphs  are  copied: 

Oil  account  of  the  cartliquake  of  1S94  and  of  numerous  inundations  which  were  the  conse- 
quence thereof  in  1S05  to  1S97,  our  raihvay  iiaving  sustained  considcrahie  dainafîe,  we  were 
compelled,  in  order  to  raise  the  resources  necessary  for  their  repairs,  to  create  privileged 
bonds  beai'ing  interest  at  the  rate  of  (3  per  cent  a  year,  free  from  taxes  and  redeemahli^  wit  hin 
ten  years  at  the  latest. 

The  creation  and  issue  of  4,(X)0  of  those  l)onds,  which  constitute  the  privileged  debt  of  a 
nominal  value  of  2,000,000  francs,  of  which  w(>  have  just  spoken  to  3'ou,  was  successively 
authorized  by  you. 

We  propose  you,  therefore,  to  give  in  payn\ent  of  this  privileged  debt,  to  which  thoy  are 
already  appropriated,  the  bonds  of  the  Venezuelan  5  per  cent  loan,  1896,  which  we  have 
received  from  the  Venezuelan  Goverimient,  in  redemption  of  the  inter(\st  guarantees  it  has 
promised  us  b}'  our  concession  act,  which  bonds  figure  in  the  balance  you  have  just  approved 
as  stock  of  the  company,  for  a  valuii  of  3,1.52,000  francs. 

As  we  told  you  at  the  beginning,  we  have  a  buyer  of  these  bonds  of  oin-  stock,  which  bonds 
are  not  quoted  and  the  di.sposal  of  which  is  almost  impossible  for  a  sum  that  might  enable 
us  to  redeem  and  reimburse  the  4,000  bonds  that  are  outstanding  and  to  obtain  besides  the 
constitution  of  an  administration  ñmd  of  200,000  francs.  In  view  of  the  fact  that  the  3  per 
cent  revenue  of  Venezuela  is  quoted  in  London  at  from  31  to  33  per  cent,  you  will  see,  gentle- 
men, as  the  comptrollers  of  the  compromise  and  as  your  administration  council,  that  the 
companj'  will  obtain  by  this  combination  a  realization  under  imexpected  conditions  of  these 
bonds  of  the  5  per  cent  Venezuelan  loan  of  189(3,  since  these  realizations  will  take  place  at 
70  per  cent. 

And  from  the  second  report,  dated  the  I'itli  of  March,  1900: 

The  funds  that  had  remained  available  to  the  company  after  the  reimbursement  of  the 
ten  years'  bonds  would  have  constituted  for  it,  in  normal  timen,  a  suflicient  administration 
fund,  but  the  revolutionary  events  which  almost  uninterruptedly  have  occurred  up  to  the 
present  have  rapidly  consumed  them. 

These  resources  having  been  exhausted  and  in  view  of  the  continuation  of  the  revolution 
the  commis-saries  of  the  compromise,  on  the  16th  of  August,  1899,  authorized  the  council  to 
borrow  up  to  the  amount  of  100,000  francs,  the  .sums  it  would  require  to  meet  the  situation, 
whether  there  was  a  possibility  to  proceed  vnth  the  exploitation  or  the  necessity  of  suspending  it. 

The  coupons  of  the  .5  per  cent  Venezuelan  loan  of  1896,  due  on  the  1st  of  July,  1896,  repre- 
senting about  79,000  francs,  were  given  as  .security  for  an  advance,  which  amounted  to 
.58,21.5.9.5  francs. 

This  advance  was  reduced  28,228.94  francs  on  the  15th  of  Januaiy  last  through  the  part 
pajrment  made  to  us  on  that  date  on  the  coupons  given  as  security. 

In  short,  the  debt  we  have  in  favor  of  our  lender  is  this  day  of  29,987.01  francs. 

He  has  in  his  pos.session  a  pledge  of  about  .50,000  francs,  nominal  value,  represented  ])y  tlie 
receivable  balance  of  the  aforesaid  coupons. 

From  the  narrative  above  made,  from  all  the  modifications  made 
in  the  primitive  contract  whi(  h  liad  for  its  object  the  construction  of 
the  raihvay  from  Mérida  to  San  Carlos,  from  the  difi'erent  cases  of 
main  force  which  at  different  times  suspended  the  construction  works 
or  largely  destroyed  them,  from  the  agreements  concluded  between 
the  contracting  parties  with  a  view  to  avoiding  the  sometimes  insur- 
mountable obstacles  which  nature  opposed  to  the  stability  of  the 
enterprise,  and,  finally,  from  the  compromise  concluded  on  the  ISth 
of  April,  1896,  between  the  Government  of  Venezuela  and  the  repre- 


380       FRENCH    COMPANY    OF    VENEZUELAN    RAILROADS    CASE. 

seiitative  of   tho    ' Compagnie   Française  do  f'liomins  de  Fer  A'éné- 
zuéliens/'  the  followinj?  facts  appear  sufliciently  proved: 

On  tlie  Ist  of  July,  1898,  which  date  it  is  convenient  to  estahlisli 
for  the  due  separation  of  the  time  to  which  the  claim  presented  refers, 
all  the  engagements  contracted  by  the  Government  of  Venezuela 
with  respect  to  the  company,  as  the  concessionary  of  the  contract 
concluded  with  the  Duke  of  Morny  in  August,  1888,  and  in  virtue 
of  the  subsequent  convention  directly  concluded  between  the  Gov- 
ernment of  Venezuela  and  the  representative  of  the  company,  had 
been  exactly  comj)lied  with.  The  obligations  contracted  by  said 
Government  by  the  contracts  of  the  13th  of  August,  1888,  of  the  18th 
of  June,  1891,  and  the  18th  of  April,  1896,  were:  To  give  in  fee  simple 
to  the  contractor  500  meters  of  national  lands  on  each  side  of  the  line 
on  the  whole  length  thereof;  to  allow  it  to  take  in  the  national  woods 
all  the  timber  required  b}^  the  enterprise  for  the  construction  of  the 
works  of  the  line;  to  permit  the  introduction,  free  from  duties,  of 
the  machines,  materials,  implements,  and  other  utensils  necessary  for 
the  construction  of  the  railway;  not  to  impose  upon  the  enterprise 
at  an}'  time  any  national  or  state  contributions;  to  grant  extensions 
of  time  for  the  conclusion  of  the  work  in  cases  of  main  force  that 
might  stop  the  works  of  construction,  and,  finally,  to  deliver  to  the 
company  4,450,000  bolivars  in  par  bonds  of  the  Venezuelan  loan  of 
the  Disconto  Gesellschaft,  1896,  in  payment  of  the  sum  of  1,950,000 
bolivars,  to  which  it  reduced  the  total  amount  of  all  its  claims  for  the 
7  per  cent  guarantee,  liquidated  up  to  the  31st  of  December,  1895, 
and  for  any  other  cause  to  which  it  might  be  entitled,  and,  besides, 
for  the  redemption  of  the  obligation  of  continuing  to  pay  the  same 
7  per  cent  guaranty  on  18,000,000  bolivars,  guaranteed  capital,  for 
the  rest  of  ninety-nine  years,  for  which  respect  the  company  agreed 
to  receive  2,500,000  bolivars.  All  the  aforesaid  obligations  were 
in  due  time  complied  with,  as  appearing  from  the  voluminous  records 
relating  thereto,  and  as  is  acknowledged  by  the  company  itself.  The 
Government  of  Venezuela  appears  to  be  the  debtor  in  the  month  ot 
June,  1899,  only  of  the  sum  of  50,000  francs  for  balance  of  interest 
on  the  bonds  of  the  loan  of  50,000,000  bolivars,  which  the  company 
received,  which  interest  corresponded  to  the  first  six  months  of  1898, 
and  that  debt  is  not  one  of  the  ^'enezuelan  Government  as  a  con- 
tractor with  the  "Compagnie  Française  de  Chemins  de  Fer  Véné- 
zuéliens," nor  said  Government  could  pay  it  sejiarately  and  directly 
to  the  company,  as  the  latter  has  pretended,  but  it  formed  a  part 
of  an  obligation  contracted  by  the  Republic  with  the  Disconto  Gesell- 
schaft, of  Berlin,  with  which  the  loan  was  contracted  for  and  which 
is  called  by  the  same  contract  to  receive  the  funds  destinetl  to  tho 
gradual  redemption  and  the  payment  oÍ  interest. 


OPINION    OF    VENEZUELAN    COMMISSIONER.  381 

Article  3  of  the  contract  concluded  on  the  18th  of  April,  1S96, 
vvith  the  representative  of  the  French  company  explicitly  says: 

The  payment  of  the  one  and  the  otlier  sum  is  made  l)y  the  (lovcmment  in  this  act,  dehv- 
ering  to  the  representative  of  tlie  company  an  order  on  the  direction  of  the  Disconto  Gesell- 
schaft  of  Berlin  for  the  sum  of  4,4.50,000  bolivare,  in  par  bonds,  etc.,  which  order  shall  l>e 
provided,  besides,  with  the  approval  of  the  representativo  of  the  Disconto  in  (^aracas. 

Payment  means  cancellation,  extinction  of  a  debt,  and,  therefore, 
between  the  Government  of  Venezuela  and  the  French  company,  as 
parties  to  the  contract  which  had  for  its  ()])ject  the  construction  and 
exploitation  of  the  railwa^^  from  Santa  Bárbara  to  La  Vigia,  an}^  credit 
or  claim  that  on  account  of  thé  guaranty  or  for  any  other  cause  was  pos- 
sessed by  the  company  against  the  Government  remained  legally  extin- 
guished in  virtue  of  the  provisions  of  articles  1,  2,  and  3  of  said  agree- 
ment of  the  18th  of  April,  1896.  Any  rights  pertaining  to  the  com- 
pany as  holder  of  coupons  of  interest,  due  and  unpaid,  of  the  loan 
of  50,000,000  bolivars  of  1896  are  a  subject  entirely  strange  to  the 
juridical  relations  established  between  the  Government  of  Venezuela 
and  the  company  on  account  of  the  railway  contract  and  com])letely 
alien  to  the  facts  connected  with  the  compliance  with  the  obligations 
derived  from  that  contract. 

As  a  proof  of  this  inference,  see  Article  VI  of  the  AVnezuelan- 
German  protocol  signed  in  Washington  on  the  13th  of  Februar}^, 
1903,  which  runs  as  follows: 

The  Government  of  Venezuela  undertakes  to  make  a  new  satisfactoiy  arrangement  to 
settle  simultaneously  the  .5  per  cent  Venezuelan  loan  of  1896,  which  is  chiefly  in  German 
hands  and  the  entire  exterior  debt.  In  this  arrangement  the  state  revenues  to  be  employed 
for  the  service  of  the  debt  are  to  be  determined  without  prejudice  to  the  obligations  already 
existing. 

For  the  more  precise  appreciation  of  the  grounds  on  which  it  is 
pretended  to  base  the  present  claim,  it  is  to  the  purpose  to  examine 
the  steps  taken  b}'"  the  direction  of  the  ''Compagnie  Française  de 
Chemins  de  Fer  Vénézuéliens"  near  the  ministry  of  foreign  afl'airs 
of  France  posteriorly  to  the  arrangement  to  the  18th  of  April,  1896, 
steps  that  moved  the  chief  of  said  ministry  to  exercise  his  diplomatic 
action  through  the  consul  of  France  in  Caracas  based  on  the  data 
furnished  by  the  company. 

In  a  letter  addressed  by  the  administrator  of  the  company  to  the 
minister  of  foreign  afl'airs  in  Paris  on  the  29th  of  November,  1898, 
said  administrator  asked  for  the  intervention  of  the  French  Govern- 
ment to  secure  for  his  countrymen  in  the  employ  of  the  company 
in  Venezuela  the  protection  of  their  persons  and  property  and  com- 
pel the  Government  of  Venezuela  to  comply  with  its  engagements 
to  its  creditors,  adding  in  said  letter  that  the  administration  was 
informed  by  the  Disconto  Gesellschaft,  of  Berlin,  that  the  Imj>erial 
Government  would  simultaneously  interfere  to  the  same  j)urj)ose, 


382       FRENCH    COMPANY    OF    VENEZÜELAN    RAILROADS    CASE. 

and  in  support  ot  his  request  he  recalled  tlie  letters  which  had  been 
addressed  to  the  ministry  dated  the  2d  and  the  25th  of  June,  1898. 
It  was  in  virtue  of  that  rei^uest  that  the  ministry  of  forei^jn  affairs 
addressed  on  the  7th  of  December,  1898,  to  Mr.  Quiévreux,  in  charge 
of  the  archives  of  the  legation  of  France,  the  oilicial  note  inserted 
in  these  records  under  No.  8,  in  whicli  tlic  following  instruction's  are 
communie  ated  to  him  : 

You  are  not  unaware  that  the  "Compagnie  Française  de  Chemins  de  Fer  Vénézqéliens " 
was  placed,  in  April,  ISiHi,  by  the  government  of  Caracas,  under  the  necessity  of  accepting 
for  the  redemption  of  tiic  guaranties  that  had  Ijeen  given  in  the  concession  of  the  enter- 
prise, certain  bonds  proceeding  from  an  especial  loan  of  50,000,000  bolivars,  negotiated  in 
Berlin.  The  Disconto  Gesellschaft,  in  charge  of  the  operation,  distriJMited  those  redeemaltle 
bonds  to  the  différent  European  railway  companies  and  our  fellow-countrA'men  for  all  pt-' 
ment  of  a  debt  already  due,  of  more  than  7,000,000  francs,  and  for  the  redemption  of  'A) 
annuities  of  1,260,000  francs  had  to-content  themselves  with  a  net  sum  of  .3,200,(XX)  frarn-, 
represented  by  bonds  of  said  loan. 

The  monevs  proceeding  from  the  payment  of  interest  and  from  the  sinking  service  hu  i  e 
constituted  for  two  years  the  only  resources  with  which  the  French  company  has  been  alile 
to  continue  its  exploitation.  But  the  deliveries  have  ceased  this  year,  or,  at  least,  the  Du- 
conto  Gesellschaft  has  not  been  aljle  up  to  the  present  to  meet  only  one  of  the  monthly  pay- 
ments of  1898. 

In  view  of  the  suspension  of  payments  of  this  .5  per  cent  loan  of  1896,  our  countrymen 
declare  that  they  find  themselves  under  the  necessity  of  abandoning  their  enterprisi\  which 
will  lead  to  the  definitive  lo.ss  of  the  French  capital  which  has  been  invested  therein,  and  tiie 
amount  of  those  capitals,  I  am  assured,  is  not  less  than  33,-500,000  francs. 

In  order  to  prevent  this  eventuality,  that  the  company  already  considei-s  as  imminent,  it 

is  necessary  that  the  Venezuelan  Government  detennines  to  immediately  pay  a  sum  of 

210,000  francs,  including: 

Francs. 

For  interest  due 160, 000 

For  bonds  redeemed 50, 000 

If  the  information  given  me  corresponds  with  what  yourself  may  know  concerning  the 
financial  situation  of  the  French  company,  and,  in  case  you  know  that,  under  the  pressure  of 
the  legation  of  Germany,  the  ministers  of  \'enezuela  may  l)c  compelled  to  comply  within  a 
short  delay  with  all  or  part  of  the  obligations  to  the  European  creditors,  you  must  procure 
that  the  rights  of  our  fellow-countrymen  are  taken  into  e(|uital)le  consideration. 

For  the  date  of  the  above-inserted  note,  the  7th  of  December,  1898, 
the  French  company  had  alienated  the  4, 450, ()()()  francs  in  bonds  of 
the  loan  of  1896  and  only  had  an  interest  of  about  79, ()()()  francs  in 
coupons  due  on  the  1st  of  July,  1898;  so  that  it  induced  the  ministry 
of  foreign  affairs  of  France,  by  its  erroneous  indications,  to  ask  from 
the  Govenimciit  of  Venezuela  the  immediate  ]):iymciit  of  lM (),()()() 
francs  as  owed  for  redem])tion  and  interest  of  bonds  whieii  no  longer 
pertained  to  it,  allirming,  however,  that  that  redemj^tion  and  that 
interest  represented  for  the  company  a  vital  necessity  and  that  with- 
(jiit  their  ]iayment  il  \V(»ul(l  lind  itself  in  the  impci'ioiis  case  of  al)an- 
doning  its  entcr])ri.sc. 

It  thus  appears  from  the  resolution  passed  l)y  the  gcncial  me(>ting 
of  shai-choiders  held  on  the  .ÎOth  of  .lune,  ISSS,  by  which  said  meeting, 


OPINION    OF    VENEZUELAN    COMMISSIONER.  383 

approving  the  proposal  of  the  achninistratioii  council  and  oi"  the  com- 
mittee of  commissi(mers  of  the  obligations,  authorized  said  council  : 

1.  To  deliver  on  the  1st  of  Jidy,  189S,  all  the  bonds  of  the  5  per  cent 
Venezuelan  Loan  of  1896  that  the  company  had  in  deposit  with  the 
Disconto  of  Berlin,  upon: 

(A)  The  delivery  of  8,619  ten-years'  privileged  6  per  cent  bonds  of 
the  company. 

(B)  A  cash  balance  of  390,500  francs. 

2.  To  invite  to  the  reimbursement,  on  the  15th  of  June,  1898,  at  500 
francs  par,  of  the  381  privileged  6  per  cent  bonds,  the  numbers  of  which 
are  indicated,  and  to  separate,  in  order  to  meet  this  reimbursement, 
the  sum  of  190,500  francs  from  the  390,500  francs  received  as  said  in 
article  1. 

The  balance  of  200,000  francs  was  to  serve  as  working  ñmd. 

Besides,  as  already  shown,  the  79,000  francs,  more  or  less,  left  in 
favor  of  the  company  for  interest  of  the  coupons  due  up  to  the  date  of 
the  negotiation  of  the  bonds  of  the  loan  remained  represented  in  the 
sum  of  50,000  ft"ancs,  more  or  less,  in  January,  1899,  for  a  part  i)ay- 
ment  made  by  the  Disconto  of  28,228.94  francs  and  that  nominal 
value  of  the. coupons  was  utilized  by  the  company  in  obtaining  a  loan 
and  leaving  them  as  security  for  the  sum  of  30,000  francs,  more  or 
less. 

The  argument  that  the  company  has  adduced  against  the  Govern- 
ment of  Venezuela  by  making  the  existence  of  the  company  depend 
on  the  opportune  paj^iient  of  the  redemption  and  mterest  of  the  bonds 
of  the  loan  is  inconsistent,  for  it  is  a  fact  that  it  considered  convenient 
to  its  interest  to  negotiate  those  bonds  when  it  thought  it  oj^portune 
so  to  do,  availing  itself  of  an  offer  of  70  per  cent,  which  it  considered 
highly  advantageous. 

Regarding  the  imposition  which  it  is  adduced  the  Government  of 
A'enezuela  exercises  against  the  company,  compelling  it  to  accept  the 
4,450,000  francs  in  bonds  of  the  loan  in  payment  of  a  debt  of  7,000,000 
francs  already  due,  and  for  the  redemption  of  ninety  annuities  of 
1,260,000  francs  each,  while  it  can  not  truly  be  maintained  that  the 
compromise  between  the  Government  of  ^  enezuela  and  the  re])resen- 
tative  of  the  company  took  place  in  that  manner,  as  it  was  the  result 
of  the  free  and  spontaneous  will  of  the  two  contracting  parties,  circum- 
stances may  certainly  be  pointed  out,  which  show  that  the  sum  ])aid 
in  bonds  by  the  Government  of  Venezuela  and  which  gave  the  com- 
pany the  opportunity  of  receiving  in  cash  the  sum  of  2,508,000  francs 
represents,  in  view  of  the  occasion  on  which  the  arrangement  was 
made,  the  only  possibility  the  company  could  obtain  to  find  itself  in 
a  position  to  undertake  and  carry  out  the  works  of  repairs  of  (he  line, 
which  it  indispensably  required  to  ])ut  it  in  working  order  on  account 


384       FKKNCH    COMPANY    <>K    VENEZUELAN    RAILROADS    CASE. 

of  the  damage  caused  by  the  earthquake  of  1894,  and  of  the  subse- 
quent inundations  until  1897. 

The  Government  of  Venezuela  had  contracted  tlie  obligation  of 
guaranteeing  the  company  the  7  per  cent  on  the  capital  of  the  enter- 
prise during  ninety-nine  years,  taking  as  a  basis  for  the  computation 
of  the  capital  the  sum  of  300, ()()()  francs  per  kilometer  on  the  length  of 
60  kilometers — i.  e.,  18,000,000  francs — and  also  taking  as  a  basis  to 
fix  the  sum  corresponding  to  the  7  per  cent  the  proceeds  of  the  enter- 
prise in  its  exploitation,  dediicting  from  the  income  the  general 
administration  expense  and  the  exploitation  expense.  The  verA* 
nature  of  this  engagement  shows  that  the  company  was  to  constitute 
itself  with  a  capital  of  at  least  18,000,000  francs,  at  which  the  cost  of 
the  construction  of  the  railwa}^  was  estimated,  and  that  it  was  to  con- 
tribute, out  of  its  own  resources,  all  the  sums  indispensable  for  the 
completion  of  the  work  and  the  repairs  indispensable  for  keeping  it  in 
constant  exploitation.  The  articles  of  association  of  the  company 
and  documents  thereto  aimexed  show  that  the  capital  with  which  it 
constituted  itself  was  only  3,000,000  francs;  that  it  immediately 
created  bonds  to  raise  resources,  which  amounted  to  more  than 
18,000,000  francs,  bearing  interest  at  the  rate  of  6  per  cent,  and  that 
from  the  year  1892  the  companj',  being  unable  to  pay  that  interest, 
had  to  ask  for  and  obtain  the  appointment  of  a  judicial  liquidator,  and 
the  following  year,  1893,  asked  for  the  conclusion  of  a  concord  with 
its  creditors. 

The  inauguration  of  the  railway  took  place  in  March,  1894,  and  in 
the  same  year,  in  the  month  of  November,  there  occurred  the  earth- 
((uake  that  destroyed  the  line  and  caused  the  suspension  of  the  exploi- 
tation, and  thereupon  other  great  inundations  took  place  until  the 
year  1897. 

These  disastrous  accidents  found  the  company  in  a  state  of  insol- 
vency, without  possibility  to  make  use  of  any  credit,  bound  as  it  was 
by  a  concord  with  its  creditors  and  without  any  other  basis  to  raise 
funds  to  undertake  the  works  of  rec(mstruction  than  the  guaranty 
promised  by  the  Government  of  Venezuela  that  coidd  not  be  reiulered 
effective  imtil  the  exploitation  of  the  railway  had  been  perfectly 
as.sured,  in  permanent  conditions  by  the  lirnuu'ss  and  solidity  of  the 
railway  line  on  its  whole  length. 

The  conclusion  of  the  agreemenl  with  the  company,  which  put  an 
end  to  the  guaranty,  took  ])lace  on  the  iSth  A])rii,  1S9(),  and  at  that 
time  the  suspension  of  the  trallic  of  the  railway  subsisted  on  account 
of  the  works  of  repairs  which  the  company  had  to  undertake  after  the 
earthquake  of  1894,  and  that  continued  until  1897.  Still,  in  tlu»  month 
of  November,  1890,  the  national  executive  dcti-rniined  to  delVi-  to  a 
r<'(|uest  presented  by  Mr.  J.  Brun,  as  director  of  the  railway,  having  for 
its  object  to  ask  foi'  the  extension  of  the  time  lixed  by  article  ô  of  the 


OPINION    OF    VKNEZUELAN    COMMISSIONKR.  385 

contract  of  the  18th  of  April  of  that  same  year,  in  order  to  have 
repaired  within  a  term  of  six  months  the  damage  that  the  Vme  liad 
sustained  through  the  change  of  the  course  of  the  Chamas  River,  and 
the  president  of  the  Republic  was  pleased  to  defer  to  that  request  bv 
granting  an  extension  of  three  months,  from  the  1  oth  of  October  above 
referred  to. 

The  precarious  condition  of  the  works  of  repairs  and  the  continual 
dangers  to  which  the  line  was  exposed  b}'  the  deviation  of  the  Chamas 
River,  are  technically  shown  in  the  report  addressed  by  the  inspector 
of  the  line,  Mr.  Leónidas  Vargas,  in  February,  1897,  to  the  ministry 
of  public  works.     From  said  report  are  taken  the  following  paragraphs  : 

The  principal  station,  Santa  Barbara,  i.s  14  meters  on  the  level  of  the  sea  and  .5  nietei's 
on  the  low  waters  of  the  Escalante  River,  which  in  its  freshets  of  1890  ascended  '.i.ñO  mefei-s 
over  its  level,  overflowing  in  all  its  length  and  innndating  the  farms  on  its  hanks. 

The  terminal  station  at  kilometer  (50,  "La  Vigia,"  is  128  meters  above  the  sea  level  on  a  higii 
plain  having  a  2  per  cent  grade  as  far  as  kilometer  55,  where  the  railway  crosses  the  creek 
"Bobuqni,"  then  comes  the  creek  "  La  Arenosa," and  on  the  distance  to  4ü  kilometer  there 
are  found  "Cañonegro"  and  "Los  Cañitos." 

In  the  year  1889,  in  December,  the  Chamas  River  had  a  large  freshet  i)y  whii'h  coipulent 
trees  were  dragged  along  that  were  detained  near  "La  Vigia,"  obstnicting  its  natural  bed 
with  heaps  of  dirt,  for  which  reason  the  current  broke  the  banks  that  sloped  "El  Vigia  "  and 
inundated  all  the  woods  existing  between  kilometers  .52  and  41  of  the  line  from  Santa  Bar- 
bara to  "La  Vigia." 

In  1890  the  work  of  repairs  i)egan.  Every  one  .did  his  duty,  but  according  as  the  river 
went  on  with  its  freshets  it  went  on  destroying  all  that  man  opposed  to  its  caprices,  always 
led  by  the  unevenness  of  the  ground,  which  presented  a  2  per  cent  grade,  and  the  waters 
invaded  the  woods  and  inundated  a  portion  of  the  line. 

Then  comes  the  earthf|uake,  the  trepidations  of  which  caused  many  a  damage  on  the  cor- 
dilleras of  the  Andes  and  adjoining  plains,  producing  a  larger  unevenness  in  the  woods  lying 
between  La  Culebra  and  Caño  del  Padre,  through  which  the  railway  passes,  leaving  rails  in 
the  form  of  Nos.  3  and  5,  and  of  the  letter  S,  curves  straight  and  straight  curves;  springs  of 
dark  mud  having  a  nauseous  odor  in  the  drains  and  culverts,  flow  20  and  2.5  centimeters 
wide  and  incalculably  deep,  through  which  the  invading  waters  of  the  Chamas  entered,  exca- 
vating the  embankments  of  the  rails  and  separating  from  the  ground  the  sleepers  that 
remained  adhered  to  the  rails:  these  were  in  the  form  of  a  hammock  swinging  when  the  roll- 
ing stock  pas,sed,  moved  by  force  of  arms,  that  the  mercantile  intercourse  might  not  stop. 

From  the  j'ear  1894  up  to  the  present  the  French  company  has  made  streiuious  efforts  to 
restore  the  line  to  its  normal  condition.  To  that  purpose  they  had  built  a  siding  from  43  to 
46  kilometers,  where  the  Chamas  forms  a  drain  consisting  of  two  curves,  through  mud  pits 
from  1.50  to  200  meters  wide  on  each  side.  In  November,  when  this  siding  was  completed 
and  tried,  another  freshet  of  the  Chamas  took  place,  stronger  than  the  preceding  ones,  and 
inundated  the  line,  dragging  along  an  alluvial  sediment  that  has  stopped  up  the  70  meters' 
light  of  the  "Los  Cañitos"  bridge,  and  the  waters  have  spread  on  the  banks  and  left  the 
neighboring  villages  in  a  flood  three  and  four  feet  deep  and  the  rails  with  20  or  40  centi- 
meters of  water  over  them.     This  I  saw  in  m\'  last  visit  to  the  line. 

Now  the  company  again  undertakes  the  reconstruction,  according  to  a  document  1  have 
before  me,  and  also  undertakes  to  carry  the  Chamas  to  its  former  bed,  the  onhj  renifdi/  which, 
in  my  judgment,  can  save  the  line  of  the  railway,  for  else  all  the  ballast  that  the  Cordilleras  of 
the  Andes  may  give  mil  not  be  sufficient  to  resist  the  violence  of  60  meters  in  a  minute  that  the 
Chamas  possesses  in  the  currents  of  the  La  Libertad  straight  line,  from  .{.?  to  46"  kilometers,  a» 
it  nx>uM  be  dragged  aioay  according  as  it  ivould  be  put  in  place. 
S.  Doc.  ó:í3,  .59-1 25 


386       FRENCH    COMPANY    OF    VENEZUELAN    RAILROADS    CASE. 

The  situation  of  the  company  regarding  its  repair  works  and  the 
reopening  of  the  railway  traihc  in  February,  1897,  after  the  expiration 
of  the  extension  granted  by  the  national  Government  by  its  resolution 
of  the  15th  October,  1896,  is  shown  by  the  following  letter  of  ttie 
director  of  the  exploitation: 

Line  from  San  Carlos  to  Mérida. — Direction  of  the  Exploitation. 

L.  R.,  No.  329.]  CoMP.vcNiE  Française  de  Che.mins  de  Fer  Vénézikliens, 

Santa  Barbara,  Februanj  26,  1897. 
Citizen  Minister  of  Public  Works: 

We  have  the  honor  to  inform  you  that  communications  are  reestabHshed  and  that  the 
trains  and  locomotives  of  our  company  are  regularly  and  without  transfer  running  between 
Santa  Bárbara  and  El  V'lgia  from  this  date. 

Breysslol-. 

For  the  Director. 

During  the  administrative  year  of  1897,  and  the  first  six  months  of 
1898,  the  railway  company  made'use  in  its  relations  with  the  national 
Government  of  the  exemptions  granted  it  by  the  concession  as  regards 
the  importation  of  materials  as  appearing  from  the  records  15  and  16 
of  the  archives  of  the  ministry  of  public  works.  The  direction  of  the 
exploitation  omitted  in  the  year  1897  to  send  to  said  ministry  the 
statistical  tables  which  it  was  its  duty  to  periodically  send  to  it,  con- 
formably to  article  99  of  the  regulations  on  railways.  The  agency  of 
the  French  company  at  Maracaibo  said  to  the  ministrvof  public  works, 
in  a  communication  dated  the  17th  of  May,  1897,  that  in  virtue  of 
instructions  communicated  to  him  from  Santa  Bárbara  del  Zulia  by 
Mr.  Julio  Brun,  director  of  the  exploitation,  the  company  in  Paris  had 
since  long  ago  taken  charge  of  the  opportune  remission  of  said  data  to 
the  ministry. 

From  the  tables  sent  to  the  ministry  of  public  works,  corresponding 
to  the  months  from  January  to  November,  1898,  forming  the  records 
No.  17,  it  appears  that  the  exploitation  in  said  months  left  the  com- 
pany an  unfavorable  balance  amounting  to  the  sum  of  184,418.13 
francs. 

During  the  period  running  from  the  1st  of  January  to  the  20th  of 
May,  1899,  of  direct  and  regular  exploitation,  the  company  coidil  l)y 
dint  of  economies  and  in  full  crop  realize  a  favorable  balance  of  30,001) 
francs,  the  receipts  amounting  to  172,593.01  francs  and  the  expenses 
to  141,883.28  francs.  From  the  20th  of  May  to  the  12tli  of  October, 
at  which  date  the  actual  suspension  of  the  exploitation  took  place, 
owing  to  the  nonexistence  of  regular  traffic,  the  receipts  rapidly 
decreased  and  even  ceased  entirely,  wliilo  th(>  expense  did  not  undergo 
any  reduction.  The  deficit  of  that  jjeriod  amounted  to  about  60,000 
francs,  the  receipts  amounting  to  83,153.33  francs  and  the  expense 
141,809.46  fi'ancs,  and  that  df^ficit  consuuiing  the  preceding  favorable 
balance  and  the  remainder  of  tiie  resources  of  the  comjiany. 


OPINION    OF    VENEZUELAN    COMMISSIONER. 


387 


In  the  rei)ort  of  the  administration  council  presented  to  the  share- 
holders on  the  12th  of  March,  1900,  from  which  the  foregoing  data  are 
taken,  it  is  said  that  the  Govornmont  of  Venezuela  was  owing  the  com- 
pany on  the  31st  of  December,  1H9S,  a  sum  of  174,()!>7.2()  francs  for 
expense  of  transportations,  regularly  ordered  by  its  oilicial  manda- 
tories, and  that  on  the  31st  of  December,  1899,  the  same  Government 
was  owing  the  sum  of  203,529.70  francs. 

The  balance  contained  in  the  above-mentioned  report,  correspond- 
ing to  the  31st  of  December,  1899,  gives  the  following  indication  of  the 
assets  and  liabilities  of  the  company: 


First  cstalilishim-iit 

Deposit  "(  stores  in  Venezuela  .  . . 
Money  in  safe  and  in  banks 

Debtors:  Francs. 

Sundries 81,443.34 

Government  of 

Venezuela  . . .  203, .529. 70 

I'rofit  and  loss 1,010,417.59 

Interest       o  w  e  d 

bondholders     on 

31st  December, 

1889 8,439,083.35 

Total 


Francs. 


Liabilities. 


16,352,175.70 

84,757.98 

1,827.35 


284,973.04 


9,449,500.94 


Shares 

Bonds,     44,509,     of      Francs. 

500  francs 22, 284,. WO. 00 

Difference  between 

the  nominal  value 

and  the  proceeds 

realized 7,649,405.50 


Francs. 


Sundry  creditors 

Bondholders'  interest  on  the  31st 
December,  1899  (article  2  of  con- 
cord)   


3,0(X),000.1KJ 


14,t):<5,034.50 
99,117.16 

8,439,083.35 


26,173,235.01 


Total 26, 173, 23.5. 01 


The  foregoing  indication  throws  light  enough  to  make  the  financial 
situation  known  in  which  the  ''Compagnie  Française  de  Chemins  de 
Fer  Vénézuéliens"  found  itself  on  the  12th  of  October,  1899,  at  which 
date  it  abandoned  its  exploitation  for  lack  of  resources  to  continue  to 
meet  the  most  indispensable  expense,  which  in  proper  commercial 
terms  is  called  state  of  bankruptcy. 

With  assets  represented  by  investments  or  dead  capital  of 
16,436,933.68  francs,  1,827.35  francs  in  cash,  and  284,973.04  francs  in 
credits  receivable,  and  liabilities  of  14,734,151.60  francs  in  bonds,  and 
8,439,083.36  francs  in  interest,  subject  to  a  concord  and  without  an\' 
credit,  the  company  could  not  but  abandon,  as  it  did,  the  exploitation 
of  the  enterprise  for  lack  of  resources. 

Such  is  the  situation  of  every  merchant  who,  being  in  want  of  the 
most  indispensable  means  to  continue  the  movement  of  his  business,  is 
constrained  to  suspend  it  and  call  his  creditors  to  the  liquidation  and 
distribution  of  their  credits. 

The  "Compagnie  Française  de  Chemins  de  Fer  Vénézuéliens''  did 
not  act  in  this  way,  l)ut,  protected  by  a  concord  which  favored  both  its 
interest  and  that  of  its  creditors,  preferred  to  the  li(|uidation  and  dis- 
tribution of  its  assets  declaring  the  Government  of  Venezuela  respon- 
sible for  the  bad  condition  of  its  finance,  for  the  lack  of  resources  to 
continue  the  traille,  for  the  paralyzation  of  this  on  account  of  révolu- 


388       FRENCH    COMPANY    OF    VENEZUELAN    RAILROADS    CASE. 

liDiiarv  inovcnu'iits.  of  the  use  of  its  steamers,  which  was  the  origin  of 
the  only  important  credit  contained  in  its  assets  and  the  cause,  through 
default  of  payment,  as  it  pretends,  of  the  ruin  of  its  concerns. 

The  chart's  formidated  hy  the  company  against  the  Government 
of  \'enezuela.  and  as  appearing  from  the  reports  of  the  12th  of  March, 
1900,  and  the  3üth  of  the  same  month,  1901,  and  from  its  communi- 
cations to  the  ministry  of  foreign  affairs  of  France,  are  sununarized  in 
the  paragraphs  of  a  conmumication  aildressed  to  the  minister  of 
foreign  affairs  by  the  president  of  the  administration  coimcil  on  the 
;iOth  of  March,  1901 .  running  as  follows: 

MoNsiECK  i.K  Mini.stkk:  We  liavc  just  lu'cii  oflkially  inlonued.  hotli  tliiougli  Mr. 
Qui^vreux,  consul  of  France  in  Caracas,  and  tlie  ■"Compagnie  Franvaise  de  Caljles  Télé- 
<;rapl)i<iuc'S,''  (liat  the  minister  of  publie  works  of  Venezuela  intends  to  l)ave  an  inventory  of 
our  goods  made  to  give  the  enjoyment  tiiereof  to  an  Italian. 

We  have  the  honor  to  transcribe  to  you,  hereinafter,  the  conmumication  sucli  as  it  was 
addressed  to  us: 

"Parls.  March  IS,  1891. 
'■Co.Mi'.\<i.NiE  Fk.\N(;.\ise  de  CnE.MiNs  UE  Fer  Véxézuéliexs. 

ló  Avenue  Martignon,  Paiix. 

"Gent!-E.mex:  As  a  complement  of  our  telephonic  communication  of  Friday  last,  we 
have  the  honor  to  convey  to  you  herein  the  copy  of  a  telegram  we  have  received  from  Mr. 
Quiévreux,  chargé  d'aíTaires  de  F" ranee  in  Caracas. 

"'  Kindly  inform  the  'Compagnie  Française  desChemin-;deFer  Vénézuéhens' that  minister 
of  public  works,  considering  that  it  abandons  its  Santa  Barbara  line,  has  just  appointed  a 
comtnission  in  charge  of  proceeding  to  an  inventory,  this  witli  a  purpose  to  give  this  line  to 
an  Italian  named  Salvatore  Botaro. 

"Kindly  accept,  gentlemen,  the  assurance  of  our  distinguished  consideration. 

"Co.MP.VGXIE   UE   C.\BLE.S   TÉLtXiR.VIMJlQUES." 

(Signed)  . 

This  decision  of  the  Venezuelan  minister  would  constitute  an  actual  and  definitive  spolia- 
tion of  the  rights  and  goods  of  oin-  fellow  c-ountrymen,  share  and  bondholders. 

That  ministry  of  Venezuela  pretends  to  justify  its  decision  by  saying  that  we  ai)andon  our 
line.  It  does  not  even  do  us  the  honor  of  anncuncing  its  project  to  us.  as  it  did  not  do  us  the 
honor  of  acknowledging  the  receipt  of  our  claims  and  of  the  icasons  that  compelled  us  to 
suspend  our  exploitation  in  October,  1889. 

Those  reasons,  Monsieiu'le  Mini.strcwehaveconununicated  toyou  and  were  niunerousaud 
important.  One  of  them  would  have  been  suilicient  to  justify  our  suspension.  Our  finance 
had  been  exhau.sted  only  to  .satisfy  the  exactions  of  the  agents  of  \'enezuela  who  did  not  cea.si> 
to  .seize  our  steamers,  trains,  material,  personnel,  and  who  even  in  the  moments  of  calm  in 
the  revolutionary  disturbances  oppo.sed  our  transporting  merchandise  for  which  we  were 
organized. 

If  we  bad  been  in  due  time  reimbursed  i>y  the  \'enezue!an  authorities  the  expense  and  dis- 
bursements of  all  kinds  we  had  to  make  for  them,  we  would  have  been  able  to  continue, 
reorganize,  and  recommence  our  exploitation. 

But  nothing  of  that  has  happened. 

We  have  never  been  honored  with  a  j)ropo.sal  or  even  the  least  comnnmication. 

.\ow,onl3'  because  we  are  French,  because  no  diplomatic  relationsexist  between  \'enezuelii 
and  France,  and  because,  according  to  the  idea  spread  over  all  the  country,  trni/lfnug  ran  hr 
(lone  to  (he  French  irilhoiil  harliuj  anijthin<i  to  fiar,  it  is  finally  desired  to  rob  us  of  what 
remains  of  our  property,  violating  the  seals  with  which  we  have  provid(>d  it  in  the  presence 
and  with  the  a.ssistance  of  the  \'enezuelan  authorities  and  our  consulîU'  ag(>u( . 


OPINION    OF    VKNEZÜKLAN    OOMMISSIONER.  389 

The  records,  certainly  too  voluminous,  that  oui'  conipiíuy  possesses  in  the  niinislry  of 
foreign  iid'airs,  teem  with  oincial  and  unoilicial  evid(>nce  of  the  vexations  sud'ered  hy  our 
fi^llow  countrymen,  either  ajjents  or  not  of  our  French  company,  and  even  by  oin-  national 
flag.  It  would,  rigorously,  he  sufFicient  for  us  to  respectfully  remind  you.  Monsieur  le 
Ministre,  of  the  fact  that  Mr.  Brun,  a  French  engineer,  iras  murdered  in  May,  1898,  in  liis 
post  as  director,  in  our  directive  hou,se,  at  a  window  over  which  the  French  flag  was  floating, 
by  a  Venezuelan  soldier,  who  obeyed  the  orders  of  the  Venezuelan  general,  Eleazar  Montiel. 
The  flag  was  pulled  down  and  dragged  along  in  the  nuid,  etc. 

Through  a  prudence  which  we  have  thought  wotild  be  appreciated  we  have  avoided  to 
revive  these  sad  incidents. 

Thenceforth,  in  189S  and  1899,  several  of  our  .service  employees  have  been  arreste*!,  or 
threatened  to  be  arrested,  by  generals  and  even  by  the  brother  of  the  late  President  of  the 
Republic,  Mr.  Andrade,  the  president  of  the  State  of  Zulia.  Oiu-  steamers  have  been  seized, 
deteriorated,  and  destroyed,  of  which  a  proof  is  offered  by  our  steamer  5'on  Cdrloa  y  Mt'rida, 
which,  anchored  in  the  harbor  of  Maracaibo,  has  served  as  target  for  the  marksmen  of  both 
parties  and  Anally  was  sunk  by  their  bullets. 

We  request  you.  Monsieur  le  Ministre,  to  excuse  our  insistence  in  asking  foi-  your  intci- 
vention. 

The  question,  in  effect,  is  the  interest  the  importance  of  which  is  consideiable  for  (an- 
iel low  countrymen,  not  only  from  the  particular  point  of  view  of  the  millions  which  the 
bondholders  of  our  company  represent,  but  from  the  general  point  of  view  of  the  moral  and 
commercial  influence  that  France  possessed  in  Venezuela  and  which  it  is  about  to  lose 
forever. 

Venezuela  i.s  a  rich  country.  It  would  suftice  for  it  to  l)ecome  a  very  prosperous  coinitiy, 
that  its  interior  organization  should  be  regenerated. 

Monsieur  le  Ministre,  permit  that  we  finally  appeal  to  the  protection  of  France  in  favor  of 
the  French  interests  we  represent,  that  we  renew  to  you  the  claims  formulated  in  our  letter 
of  the  17th  of  January,  1901,  and  that  we  protest  with  all  our  force  against  the  new  abusi 
that  seems  to  threaten  us. 

Kindly  accept.  Monsieur  le  Ministre,  the  assurance  of  our  high  ct)nsideration. 

E.  Reynaid, 

The  Pre.tidenf. 

The  integral  insertion  of  the  foregoing  note  will  facilitate  the 
chronological  examination  of  the  facts  therein  mentioned,  abstaining 
in  this  examination,  as  becomes  our  duty  of  an  impartial  judge,  from 
all  appreciation  that  is  not  entirely  conformable  to  truth,  that  does  not 
appear  proved  in  the  voluminous  records  to  which  the  aforesaid  note 
refers,  that  is  not  inspired  with  the  principle  of  justice  and  absolute 
equity  upon  which  the  arbitrator  must  base  his  decisions. 

In  this  examination  of  the  evidence  presented  by  the  very  claiming 
party,  consisting  in  the  declarations  of  the  employees  of  the  company 
themselves,  the  first  place  pertains,  by  order  of  dates,  to  the  accident 
of  the  killing  of  Mr.  Brun,  a  French  engineer,  wliich  took  place  on 
the  15th  of  Juh",  1898,  in  order  to  ascertain  whether  it  is  true,  as 
affirmed  by  the  president  of  the  company,  that  Mr.  Brun  was  mur- 
dered in  liis  post  lis  director  in  his  own  house,  at  a  window  over  which 
the  French  flag  was  floating,  by  a  Venezuelan  soldier,  who  obeyed 
the  order  of  the  Venezuelan  general,  Eleazar  Montiel,  and  pulled  dowai 
and  dragged  the  flag  along  in  the  mud,  etc. 


390       FRENCH    COMPANY    oF    VENF:ZUKLAN    RAILROADS;    CASE. 

On  the  1st  of  May,  1898,  General  Eleazar  Montiel,  late  governor 
of  the  "Colon"  territory,  proceeding  from  Maracaibo  on  the  steamer 
Progreso,  landed  with  troops  of  the  Government  at  Santa  Bárbara. 
The  said  steamer  went  down  the  river  Escalante,  carrA'ing  120  con- 
scripts and  the  authorities  of  Santa  Barbara.  The  following  day 
the  steamer  Santa  Bárbara  arrived,  bringing  on  board  a  guard  of 
12  soldiers  of  the  Government.  On  Wednesday,  the  3d  of  ^hiv.  at 
midnight  150  insurgents,  commanded  by  a  General  Figuera,  took 
possession  of  the  steamer  Santa  Bárbara  after  short,  but  severe 
fighting,  in  which  5  soldiers  of  the  Government  and  the  boatswain 
of  the  steamer  were  wounded.  During  the  4th,  5th,  6th,  and  7th  of 
May  the  revohiti(maries,  masters  of  the  territory,  cut  the  telegraph 
and  made  the  steamer  Santa  Bárbara  set  out  for  Santa  Cruz  del 
Zulla,  a  village  situated  up  the  Escalante  River,  with  some  of  their 
men,  scattering  their  partisans  in  guerrillr.s  j'long  the  rivers  to  wait 
for  the  arrival  of  the  troops  of  the  Government.  They  had  taken  pos- 
session of  6  empty  wagons  and  formed  a  barricade  on  the  landing 
pier.  On  Sunday,  the  8th  of  May,  at  6.30  in  the  morning,  a  lively 
musket  firing  was  heard  at  some  distance  from  Santa  Bárbara,  wliile 
the  troops  of  the  Government  penetrated  by  the  bottom  of  the  vil- 
lage, and  a  lively  musket  firing  broke  out  in  the  streets. 

Now  comes  the  textual  part  of  the  report  of  Mr.  Peysselon,  chief 
^gent  of  the  company  at  Santa  Bárbara  : 

Notwithstanding  that  the  French  flag  was  hoisted  on  a)l  the  windows  and  angles  of  the 
building  of  the  direction,  this  building  was  not  respected.  Five  bullets  of  a  precision  arm 
were  directed  to  the  windows  only,  and  while  Mr.  Brun  was  closing  the  shutters  of  one  of 
them  he  was  very  seriously  wounded  in  his  right  hand. 

Without  hesitation  and  without  a  deliberated  purpose  we  can  say  that  the  buiU't  which  so 
unfortunately  wounded  Mr.  Briui  proceeded  from  one  of  the  arms  of  the  .soldiers  (»f  the 
Government.  The  gucriilla  which  executed  tiiis  .sad  deed  was  commanded  by  Eleazar 
Montiel,  which  aflirmation  I  am  in  a  position  to  make,  because  wlien  I  went  to  look  for  a 
physician,  almost  inunediately  after  the  misfortune,  the  lii-st  and  only  known  person  I  saw- 
was  Montiel.  When  I  went  out  the  second  time,  I  found  his  lieutenants,  Beliais  and  José 
Acosta,  with  him.  To  make  the  first  cure  of  Mr.  Brun,  it  was  necessary  to  wait  a  m«  ment 
for  the  arrival  of  the  physicians.  Mr.  Bnm  sustained  then  a  very  painful  and  long  opera- 
tion and  the  doctor  did  not  conceal  from  us  that  his  state  was  a  .serious  one. 

Mr.  Peysselon  comj)letes  his  statenient  in  the  following  terms: 

Steps  were  taken  immediately  near  the  generals  and  the  legal  authorities  to  obtain  the 
transportation  of  Mi-.  Bnm  to  Maiiiciiiho  on  tlie  steamer  PnxjnsD.  Tlie.^-e  steps  had  no 
result. 

At  2  o'cloi'k  in  the  afternoon  the  troops  were  mastei-s  of  Santa  Eárhani.  On  Monday 
morning  Generals  Eleazar  Montiel  and  Zuleta  set  out  toward  Santa  Cruz  with  100  n-.en  to 
retake  from  the  insurgents  our  steamer  Santa  Bárbara.  Several  forces  took  part  with  tiiem 
in  the  expedition  of  Tuesday.  Our  steamer,  wiiicli  the  revolutionaries  hatl  led  going  up  the 
Hscalante  to  beyond  Santa  C'ruz,  amidst  luimerous  risks  wiiich  that  waterway,  mmnvigable 
in  that  part,  olfercd,  was  recovered  on  Wednesday  by  the  troo|)s  of  the  Govermnent  and 
brought  l)ack  to  Santa  BiVrbara,  towed  l)y  barks,  as  tlic  revolutionaries  had  taken  away  tiie 
bearings  and  cushions  of  tlic  axle  in  order  to  inmii)i)ili/.c  lier. 


OPINION    OF    VENEZUELAN    COMMISSIONER.  891 

By  order  of  the  legal  authorities  our  shop  immediately  made  the  necessary  pieces  and  within 
a  few  days  put  the  steamer  in  navigating  order. 

On  Timrsday  morning  at  10  o'clock  our  director,  Mr.  Brun,  who  wa.s  a  little  better,  was 
embarked  on  the  Progrefto,  bound  for  Maracaibo,  and  died  on  l)<)ard  at  8.45  p.  m.  on  account 
of  his  wound  having  gangrened. 

Such  was  the  information  wliich  the  agent  Peysselon  transmitted 
to  his  company  while  the  events  above  narrated  took  place,  affirming, 
without  hesitation  and  without  a  deliberated  purpose,  that  the  bullet 
which  wounded  Mr.  Brun  had  been  intentionally  directed  by  one  of 
the  soldiers  of  the  Government,  under  the  orders  of  Gen.  Eleazar 
Montiel. 

Let  us  now  see  wliich  was  the  declaration  made  by  the  same  Mr. 
Peysselon  before  the  consul  of  France  at  Maracaibo  on  the  19th  of 
May,  1898,  regarding  the  events  of  the  8th  of  May.     It  is  as  follows: 

On  Sunday,  the  8th,  the  legal  troops  carried  on  the  steamer  Progreso  arrived  at  12.30  at  the 
village.  Under  these  circumstances  we  must  foresee  a  battle  in  the  streets.  This  foresight 
advised  us  to  immediately  shut  all  the  doors  and  windows  of  our  dwelling  house.  While  I 
was  closing  a  window  overlooking  the  square,  Mr.  Brun  was  closing  that  of  his  room,  which 
overlooked  the  Santo  Domingo  street.  At  the  same  moment  the  musket  firing  began  in  that 
street,  the  window  was  closed  already,  but  Mr.  Brun  had  not  yet  had  time  enough  to  remove 
his  hand  from  the  lock,  when  a  bullet  of  a  precision  arm  pierced  the  window  through,  twisted 
the  lock  in  an  extraordinaiy  way,  and  pierced  his  hand  through  and  through,  throwing  the 
chips  on  his  breast. 

Mr.  and  Mi's.  Crinière,  who  inhabit  the  house  of  the  direction,  assisted  Mr.  Biun  in  this  sad 
circumstance.  On  mj-  part  I  immediately  went  out  to  the  square  to  have  a  physician  called, 
met  with  twenty  armed  men  of  the  Government,  and  the  only  person  known  to  me  to  whom 
I  could  appl}'  was  Gen.  Eleazar  Montiel,  the  chief  of  the  force.  As  the  doctor  had  not 
arrived,  I  went  out  for  a  second  time  and  saw  the  same  General  Montiel,  with  Bcliais  and 
Acosta,  his  lieutenants,  and  another  guerrilla  of  the  Government.  Then,  when  the  first  panic 
was  over,  Drs.  P.  Rosales  and  T.  Cohen  could  be  called  and  immediately  came  to  assist  our 
friend. 

To  complete  my  declaration,  I  address  you  a  copy  of  the  information  presented  bv  Doctor 
Cohen,  the  plwsician  of  the  company,  who  assisted  Mr.  Brun  until  his  death.  I  must  add 
that  since  the  morning  we  had  heard  the  dull  noise  of  a  distant  musket  firing:  that  in  view 
of  the  situation  prudence  advised  us  to  hoist  the  French  flag  on  all  the  fronts  of  the  house, 
which  we  did  at  about  10  o'clock  in  the  morning,  when  the  public  rumor  announced  that  the 
Progreso  was  sailing  up  the  river  with  Government  troops.  In  spite  of  our  three  colors,  you 
see  it  well.  Monsieur  le  Consul,  our  house  was  not  respected  and  five  bullets  were  shot  on  our 
windows.  Mr.  Brun  remained  at  Santa  Bárbara  until  the  first  occasion  that  f  resented  itself 
for  him  to  come  down  to  Maracaibo.  He  was  embarked  on  Sunday  at  about  10  with  the  great- 
est attention,  and  his  state  did  not  permit  us  to  foresee  so  fatal  and  prompt  an  end. 

The  bookkeeper  of  the  company,  M.  A.  Crinière,  declares,  before 
the  same  consul  of  France,  at  Maracaibo,  in  the  following  words: 

In  the  morning  of  Sunday,  the  8th  of  May,  fearing  a  serious  encounter  of  the  two  parties, 
we  hoisted  at  about  10  o'clock  on  the  house  of  the  direction  flags  with  our  French  colors, 
two  on  the  windows  of  the  hall  overlooking  the  square,  which  were  hoisted  by  Mr.  Brvm 
himself,  helped  by  Miguel  Labarca,  and  two  others  which  were  hoisted  by  me,  a  very  large 
one  in  Santo  Domingo  street.  It  was  through  this  street  that  the  Government  forces  flanked 
the  iñllage,  and  the  room  in  which  Mr.  Brun  was  wounded  while  closing  a  window  overlooked 
this  street.  The  fifth  flag  was  placed  by  the  same  Labarca  on  the  entrance  barrier  overlook- 
ing the  road. 


;^V>'i       KKENCH    rOMPANV    nF    VENEZUELAN    RAILROADS    CASE. 

\Vf  weicuitrunquil  ln'causi-  we  did  not  see  or  licariiiiytliiiig,  wlu'ii  at  half  past  twelve  it  was 
known  that  the  steamer  Frogreao  was  at  the  entrance  of  Santa  Barbara.  A  great  move- 
ment took  place  and  a  white  flag  was  seen  at  the  station,!/'^ if /i  tranquilized  «.«  a  little,  as  we 
thought  that  the  two  parties  would  make  tenns.  Unfortunately  it  did  not  happen  so,  and 
a  strong  volley  broke  out  at  that  moment  in  Santo  Domingo  street.  It  was  that  the 
.soldiers  .sent  from  ^hlra<•aibo  arriving  by  the  bottom  of  the  village  nttacTced  the  forces  of 
Gentralu  Fujiiera  and  Pozo  in  rear.  Iiiuiu'diately  Messi-s.  Brun,  IVvsselon.  and  myself  ran 
in  order  to  protect  ourseleves  from  the  bullets  to  close  doors  and  windows.  I  had  already 
heard  IxOiiiid  me  as  the  noise  produced  by  the  fall  of  gravel.  It  was  a  bullet  that  had  pierced 
through  the  window  of  the  hall,  on  which  there  were  two  flags  and  which  overliMjked  the 
square:  almost  at  the  .same  moment  I  heard  Mr.  Brun  cry,  "Ah!  I  am  wounded."  We  all 
ran  to  help  him  and  saw  his  right  hand  horribly  mutilated  bj-  a  bullet.  This  happened  in  one 
instant.  We  furnished  the  first  attentions  that  so  serious  a  wound  required  and,  the  musket 
firing,  being  over  Mr.  Peys.selon  ran  in  search  of  a  physician.  I  followed  him  in  .search  of 
water  and  saw  soldiei-s  of  the  Ciovernment  keeping  the  entrance  of  the  house  of  the  direction 
which  overlooked  the  road  and  the  Frcncli  flag  floating  over  their  heads,  which  did  not 
prevent  them  fn)m  preparing  to  fire  at  us,  and  fortunately  Mr.  Pcy.sselon  had  presence  of  mind 
enough  to  cry  "French  company,"  which  was  sufficient  to  prevent  that  they  should  carry 
out  their  purpose,  and  then  Mr.  Peys.selon  went  out. 

In  view  of  the  manner  in  which  the  two  ])resential  witnesses,  who 
were  hiojh  employees  of  the  company,  relate  the  events  of  the  8tli  of 
May  and  the  manner  in  which  the  wound  of  Mr.  Brun  took  place, 
the  affirmation  of  Mr.  Peysselon  that  the  bullet  which  caused  the 
wound  of  Mr.  Brun  was  intentionalh"  directed  against  the  window 
where  the  latter  was,  can  only  be  considered  as  entirely  jjroundless 
and  precisely  suo:g;ested  hy  the  deliberate  purpose  to  attribute  a  mis- 
chievous intention  to  a  merely  accidental  act.  The  declaration  of  the 
bookkeeper  of  the  company  that  on  hearing;  the  musket  firing  in  the 
street  Monsieurs  Brun,  Peysselon,  and  himself  ran  to  close  the  doors 
and  windows  to  protect  themselves  from  the  bullets,  proves  to 
evidence  that  that  impulsive  movement  of  self-preservation,  the 
desire  of  protecting  themselves  ft'om  the  manifest  danger  oflered  by 
the  entrance  of  the  bullets  fired  in  all  directions  by  the  forces  com- 
bating around  the  house,  was  precisely  the  origin  of  Mr.  Brun's  pres- 
ence at  the  fatal  point  and  moment  to  be  a  victim  of  the  tloj)lc)rable 
accident  that  occasioned  the  wound  of  his  right  hand.  To  style  this 
event  as  murder  of  the  director  of  the  company  in  his  post  of  director 
in  his  own  house,  at  a  window  over  which  the  French  il.:g  w;;s  floating, 
by  a  Venezuelan  soldier,  who  obeyed  orders  of  General  Montiel,  is 
to  pretend  to  entirely  disfigure  the  natural  and  frequent  accidcMits 
of  a  deed  of  arms,  to  convert  them,  as  it  has  been  attempted  in  the 
])re.sent  declaration,  in  a  characterized  proof  of  outrages  sufi'ered  by 
French  citizens,  agents  of  the  companv,  and  even  bv  the  FrcMich  Hag 
it.self. 

The  very  circumstance  that  the  flag  was  ])ulled  down  and  dragged 
along  in  the  mud  at  the  moment  of  the  wound  of  Mr.  Brun,  as  is 
roundly  ailirmed  by  the  president  of  the  company,  in  his  note  to  the 
minister'  of  foreign  ailairs  of  France,  strongly  appealing  to  th(>  pro- 


OPINION    OF    VENEZUELAN    COMMISSIONER.  •  893 

tection  of  France  in  favor  of  his  fellow-count rynien  and  of  the  French 
interests,  proves  to  be  a  mere  invention  destined  to  impress  the  mind 
of  a  hio;h  French  officer  a<iainst  the  Venezuelan  nation. 

From  the  documents  inserted  in  the  records  it  appears  thai  Gen- 
eral Montiel  was  the  chief  of  the  forces  that  went  up  the  Escalante 
River  and  recovered  from  the  revolutionaries  the  steamer  Su  uta  Bar- 
bara, the  propert}^  of  the  company,  which  he  brought  back  to  the  har- 
bor of  the  same  name;  that  the  day  after  his  return  he  put  at  the  dis- 
posal of  the  company  the  steamer  Progreso  to  the  ])urpose  of  c:irrving 
Mr.  Brun  to  Maracaibo;  that  it  was  said  cliief  who  ai)])roache(l  Mr. 
Peysselon  when  the  latter  went  out  from  the  house,  chariíin<í  him 
with  sendint;  for  a  physician  to  take  care  of  the  former;  that  Mr. 
Pe3'sselon  durst  not  go  liimself  in  search  of  the  physici.in,  but  returned 
to  the  house  to  wait  for  him;  that  seeing  that  the  phj'^sician  h  id  not 
arrived  he  went  out  again,  l)ut  only  to  the  purpose  of  spe:iking  again 
to  General  Montiel,  returning  thereupon  to  the  house  i  iid  waiting 
there  for  the  physicians  after  the  panic  of  the  first  moment  Wi  s  over, 
and  as  a  complement  of  the  credit  which  the  position  and  affirmations 
of  Mr.  Peysselon  in  this  matter  must  deserve,  it  suffices  to  rej^roduce 
the  note  that  he  himself  addressed  on  the  r2th  of  May,  1898,  three 
days  before  the  death  of  Mr.  Brun,  to  Gen.  ]\himerto  D.  Gonzalez,  the 
military  agent  of  General  Gómez  in  the  Santa  Barloara  district.  Said 
letter  runs  as  follows: 

Line  from  San  Cdrlo.s  to  M  crida — Direction  of  the  Exploitation. 

L.  R.  Xo.  6.58.]  Compagnie  Française  de  Chemins  de  Feu  Vénézuéliens, 

Santa  Bárbara,  May  12,  1S98. 
Gen.  ^Mamerto  D.  Gonz.^lez. 

My  Dear  Sir:  As  the  agent  of  tlie  company  and  through  impediment  of  Mr.  Brun,  I  ihiuik 
you  for  the  restoration  of  puhhc  order  and  for  having  taken  the  necessary  steps  In  l)iing 
the  Santa  Bárbara  steamer.  We  are  greatly  pleased  to  see  you  among  us  to  protect  our 
persons  and  interest.     I  am,  with  all  consideration,  your  respectful  .servant. 

(Signed)  J.  B.  Peysselon, 

Inspector  of  the  Exploitation. 

The  Santa  Bárbara  steamer  having  been  returned  to  the  company 
through  the  action  of  the  force  of  the  constituted  Government,  that 
protected  the  interest  of  the  former,  as  expressed  by  the  thanksgiving 
note  above  inserted,  the  ])ublic  order  having  been  restored  by  the 
disappearance  of  the  insurrectional  guerrillas,  the  company  reestab- 
lished the  traffic  on  its  railway  and  steamer's  lines  in  nil  the  period 
of  the  subsequent  months  of  1898  and  in  the  first  months  of  1899  until 
the  20th  of  May,  with  the  result  shown  by  the  report  of  the  adminis- 
tration council  of  .the  30th  of  May,  1901,  already  referred  to. 

In  the  month  of  May,  1899,  there  arose  the  revolutionary  move- 
ment denominated  "liberal  Restaurador,"  conducted  by  General 
Castro,  and  its  first  field  of  action  was  the  Cordillera  of  the  Andes, 


394       KKENCH    (OMPANV    <)F    VKNKZCELAX    RAILROADS    CASE. 

the  local  movements  affecting  the  region  of  the  railway  from  Santa 
Barbara  to  La  Vij^ia.  It  wí:s  then  that  the  President  of  the  State 
of  Zulia  took  possession  of  the  steamers  Santa  Bárbara  and  Reliance, 
upon  notification  to  Mr.  Decleva,  who  acted  t^s  the  director  of  the 
exj)l()itati()n.  This  fact  was  communicated  by  cable  to  the  direction 
of  the  company  in  Paris  on  the  I'ith  of  June,  1899,  and  on  the  22d 
of  the  same  month  the  agent  at  Maracail)o  transmitted  to  the  com- 
pany the  following  cablegram: 

President  will  not  pay  navigation  salaries  or  opposes  our  dismissing  our  personnel. 
Receipts  none.  We  can  not  foresee  any  increase  of  income.  Steamer  Reliance  out  of 
service.     Give  orders.     I'll   keep  firm. 

In  a  letter  dated  the  28th  of  May,  the  same  agent,  Decleva,  wTites 
to  the  direction  the  following: 

In  effect  the  movement  increases.  The  region  of  the  Cordillera  and  particularly  the  zone 
interesting  us  is  greatly  alarmed.  It  is  said  that  the  revolution  will  not  propagate  and  is 
the  result  of  merely  local  rivalries.  If  such  is  the  case,  the  evil  will  l)e  circumscrihed  in  nar- 
row limits:  the  country  in  general  will  .suil'er  little,  but  we  .shall  sufl'er  the  con.sequences — I 
mean  to  say  all  the  consequences  <>f  the  events.  I  am  informed  that  mules  coming  to  La 
Vigia  with  cargo  have  been  taken  by  the  revolutionists,  that  hundreds  of  others  have  taken  a 
different  direction  in  order  to  escape  from  the  revolutionary  bands.  Such  facts,  the  narra- 
tive t)f  which  spreads  from  village  to  village,  arc  not  proper  to  encourage  transportation,  as 
you  will  well  judge.  Many  days  will  pass  so,  supposing  the  movement  is  of  a  short  duration, 
before  those  people  will  have  recovered  confidence  and  send  us  their  merchandise. 

In  the  bill  which  \  intend  to  present  to  the  Government  (I  have  already  prepared  it  for 
the  requisition  of  the  month  of  March)  it  is  my  purpose  to  charge,  besides  the  expense  occa- 
sioned by  the  immobilization  of  our  steamer,  the  damage  caused  to  our  traffic:  but  what  a 
small  and  problematic  reward  ! 

By  the  correspondence  of  the  agent,  Decleva,  the  following  facts  are 
evidenced:  That  he  agreed  with  the  President  of  the  State  of  Zulia 
that  that  Government  would  undertake  to  prepare  and  put  in  serving 
order  the  steamer  Reliance  and  that,  regarding  the  Santa  Barbara, 
Decleva  would  give  the  order  that  it  might  be  brought  to  Maracaibo 
without  delay  and  without  waiting  for  any  cargo;  that  he  delivered, 
purely  and  simply,  the  steamer  Reliance,  the  treasury  of  the  State  un<ler- 
taking  to  pay  the  engineer,  helmsman,  fireman,  wood,  oil,  and  lamps; 
that  he  wrote  an  order  to  (^iptain  Faria  to  the  effect  of  bringing  the 
Santa  Bárbara  steamer,  availing  himself  of  all  the  circumstances  per- 
mitting him,  without  delaying  the  departure  of  the  steamer,  to  ship 
the  whole  or  part  of  the  cargo,  so  as  not  to  lo.se  the  voyage  ;  that  he  was 
permitted  to  embark  on  board  the  Santa  Bárbara,  bound  for  San  Car- 
los del  Zulia,  with  the  purpose  of  giving  the  necessary  orders  for  the 
protection  of  the  interests  of  the  company,  adirining,  in  a  letter  dated 
the  29th  of  May,  that  ])erha])s  there  was  no  danger  for  the  emj)loyees  on 
the  line,  and  that  the  orders  he  might  give  from  Maracaibo,  under  the 
iniliience  of  contrary  information,  might  result  in  ])roducing  tli.sorder 
among  the  personnel;  that  it  appeared  from  the  information  received 
from  the  line  that  everything  was  in  peace  and  order  on  the  7th  of  June, 


OPINION    <»K    VENEZFELAN    COMMISSIONER.  395 

1899;  that  La  Vigia  was  placed  under  the  watch  of  an  inspector,  the 
Veneziiehin  Lomonaco,  commissioner  of  the  Government,  near  the  com- 
pany, wlio  at  the  same  time  was  a  colonel,  commanding  15  armed  men; 
that  until  the  9th  of  June  the  Government  had  furnished  only  7  loads 
of  w^ood,  as  far  as  the  navigation  was  concerned  ;  and  regarding  th»' 
Reliance  Decleva  said  : 

You  know  that  I  have  been  able  to  disburden  myself  of  all  the  service  and  mainte- 
nance expense.  The  president  complains  that  the  small  steamer  costs  him  too  much.  I 
have  smiled  and  changed  the  conversation. 

The  correspondence  of  Mr.  Decleva,  in  a  letter  of  the  18th  of  June, 
1899,  goes  on  as  follows: 

I  have  returned  after  a  voyage  without  incidents.  At  Santa  Barbara,  at  La  Vigia,  on  the 
line,  everything/  is  quiet.  The  line  is  in  good  condition  and  the  material  complete.  All  our 
engines  have  entered  the  shop,  even  that  of  the  ballast  works  that  I  had  .set  on  service,  and 
that  I  had  to  keep  by  order  of  the  civil  and  military  authority. 

The  traffic  continues  to  he  none.  It  is  now  more  than  txL^enty  days  that  not  one  load  is 
arrived  :  our  enyines  only  run  on  the  account  of  the  Government. 

Regarding  the  navigation,  you  know  that  I  have  been  able  to  obtain  that  the  Govermnent 
provides  the  fuel  and  the  food  on  board. 

I  shall  be  compelled,  gentlemen,  to  ask  in  July /or  a  remittance  of  funds.  I  would  not  like 
to  alarm  you,  but  I  can  not  give  you  a  hope  that  I  do  not  possess  myself — the  hope  of  under- 
taking the  transactions  again. 

The  revolution  seems  to  be  spreading  itself  and  increasing  every  day. 

Our  exploitation  has  gone  through  other  crises  and  revolutions,  the  political  and  financial 
consequences  of  which  might  imperil  the  most  important  interests  and  ei'en  the  existence  of 
this  country,  but  the  exploitation  had  never,  on  any  occasion,  been  so  directly  and  radically 
affected. 

A  letter  of  the  22d  of  June  says: 

In  view  of  the  daily  loss  that  we  are  sustaining,  the  imminent  deficit  of  our  resources  and  the 
difficulties  of  a  situation  which  complicates  itself  more  and  more  and  .seems  to  be  prolonging 
itself  farther  and  farther,  I  have  desired,  as  I  informed  you  in  a  previous  letter,  to  reduce  our 
expense  as  much  as  possible.  The  dismissal  of  the  navigation  personnel  from  the  moment 
the  Government  was  not  willing  to  take  charge  of  it  presented  itself  to  me  as  a  mighty  and 
immediate  measure.  You  know  that  the  Government  opposed  this  project.  Not  knowing 
what  our  strict  right  is,  what  our  ab-solute  right  in  the  matter  is,  I  have  vainly  endeavored 
to  illustrate  my.self  with  the  copy  of  the  concession  which  I  have  in  my  possession.  I  have 
not  been  willing  to  take,  on  ray  own  account  only,  a  decision,  and  thus  engage  you  in  an 
affair  the  solution  of  which  did  not  appear  to  me  to  be  entirely  certain. 

All  the  subsequent  correspondence  of  the  agent,  Decleva,  with  the 
direction  of  the  company  confines  itself  to  the  discussion  with  the 
President  of  the  State  of  Zulia,  on  account  of  the  elimination,  which 
the  former  thought  convenient,  of*  the  personnel  of  the  steamers,  to 
introduce  economies  in  the  expense  of  the  company,  in  which  dis- 
cussion there  interfered  the  consular  agent  of  France  at  Maracaibo, 
Mr.  d'Empaire,  and  the  vice-consul  at  Caracas,  Mr.  Quievreux,  who, 
on  that  account,  sent  to  Mr.  d'Empaire  the  following  telegram: 

President  of  the  Republic  communicates  me  a  dispatch  according  to  which  the  agent  of  the 
French  company  does  not  render  the  task  of  the  Government  easy  in  the  difficult  moments  the 


8ÍMi       FR?:N<}I    (((Ml'AXV    ñV    VKNKZIKLAX    RArLROAD>i    CA^V. 

latter  (joeii  throuijit.  1  rcciucsi  ymi  hi  t-iidoavor  witliout  delay  to  obtain  in  my  uanu-  that 
the  director  of  the  company  cooperaiex  as  far  as  it  may  he  possible  in  the  restoration  ofordtr, 
thus  avoiding  disagreeable  incidents. 

In  the  absence  of  a  reply  from  the  tlircction  of  the  company  in  Paris 
to  the  cableijrams  sent  to  it  by  its  agent  asking;  for  instructions  to  de- 
cide as  to  his  persisting;  in  the  position  he  had  taken,  Decleva  con- 
strued tliis  silence,  accordini;  to  his  letter  of  the  1st  of  July,  1S99,  as 
follows: 

I  do  not  know,  I  regret,  your  projects,  your  purposes.  You  may  have  a  necret  one  whi(h 
you  hare  not  told  me.  which  you  have  no  reason  to  tell  me,  which  you  pursue  without  me,  as  it 
vere,  and  of  which  the  orders  I  receive  are  the  consequence. 

If  such  is  the  case,  I  must  obey  your  instructions  at  all  events.  But  if.  on  the  contrary, 
it  is  your  intention  to  carry  things  only  to  the  limit  that  is  prudent  in  view  of  the  future  inter- 
ests of  the  company,  my  pa.ssive  ol)edience  would  prove  to  be  a'  hlindnes.s.  You  do  not  ask 
for  my  opinion.  It  does  not  appear  that  you  ar(>  willing  to  leave  the  decision  of  the  situation 
to  me.  Your  ordere  are  peremptory,  precise,  categorical:  hence  my  embarrassment.  What 
has  the  appearance  of  a  contradiction  is  only,  in  reality,  an  exceeding  care  in  serving  you, 
carryiny  out  your  intentions. 

And  in  the  letter  immediately  following;,  of  the  3d  of  July,  it  is  said: 

I  recur  to  what  I  told  you  yesterda}'.  You  may  be  pursuing  a  purpose  unknown  to  me, 
a  purjMse  which  only  the  resistance  opposed  here  by  your  directors  to  the  requi-titions  of  the 
Government  can  prepare. 

And  could  I  act  against  that  purpo.se^  No:  my  conscience  prohibits  me  to  do  .so:  my  duty, 
the  devotion  I  owe  to  your  interests,  everything  commands  me  to  obey  you. 

To  this  discussion  occasioned  by  salaries  of  the  personnel  of  the 
steamers,  amountino;  to  the  sum  of  2,300  bolivars  monthly,  an  end  was 
put  by  the  following;  telegram  from  the  direction  in  Paris,  dated  the 
4tli  of  July: 

No  act  of  hostility:  of  the  salaries  pay  what  you  can  out  of  what  you  may  have.  It  is  well 
undei-stood  that  the  Government  will  jmy  all  the  other  expense  and  previously  achiowledye 
its  former  and  present  debts.     Here  we  have  exhausted  all  the  resources. 

The  foregoing  decision  and  the  request  to  acknowleilge  the  accounts 
luiving  been  comnuinicated  to  the  President  of  the  State  by  the  agent 
of  the  company,  the  President  su})mitted  said  approval  to  the  National 
Government,  for  such  was  incum})ent  upon  it.  Owing  to  this  reply, 
Mr.  Decleva  consulted  the  direction  as  to  whether  he  could  proceed 
to  Caracas  with  the  purpose  of  presenting  these  accounts,  and  was 
answered  by  cable  on  the  5th  of  the  same  month: 

It  is  not  possible  that  you  should  leave  Maracaibo  for  (\iracas.  Mr.  Simon  will  stoj)  there 
In  his  next  voyage. 

According  to  a  telegram  from  the  consular  agent  of  France  at  Mara- 
caibo, dated  the  13th  of  August,  and  addressed  to  the  French  consid, 
the  Government  had  reestabli.shed  traille  and  intended  to  return  the 
steamers  of  the  company,  but  revolutionaries  having  reappeared  at 
Tovar  and  Merida,  ])recisely  in  the  line  of  exploitation,  the  Frencii 
(•<)m])any  had  to  wait  for  the  resull  of  the  further  o])erations  befor(>  the 
restitution  could  take  ])lace. 


OPINION    OF    VENEZUELAN    COMMISSIONER.  397 

In  a  letter  tinted  the  .23d  of  August  of  the  same  year,  the  deputy 
administrator  of  the  company  in  Paris  informs  the  minister  of  foreign 
affairs  that  the  steamer  Rclicnur  had  been  returned  to  them,  as  li(>  had 
already  been  notilied,  with  its  axle  broken  and  the  ])r()peller  lost  ;  that 
the  steamer  Santa  Bárbara  remainetl  in  the  possession  of  the  Govern- 
ment of  the  State  of  Zulia;  that  the  railway  continued  to  be  in  the  same 
condition,  without  having  as  yet  a  free  tragic:  that  no  ])ayment  had  been 
made  by  the  Venezuelan  authorities,  and  that  its  director,  Mr.  Gustavo 
Simon,  would  leave  on  the  26th  of  August  for  Venezuela  with  instruc- 
tions to  go  to  Caracas. 

On  the  15th  of  September  of  the  same  year,  said  director,  on  his 
arrival  at  Caracas,  asked,  through  the  vice-consul  of  France,  for  an 
audience  from  the  minister  of  iinance,  which  was  granted  him  imme- 
diately for  the  next  day.  In  this  audience  Mr.  vSimon  asked  the 
National  Government /or  a  settlement  of  accounts  or  a  part  payment,  in 
order  to  be  able  to  proceed  on  the  exploitation  of  the  enterprise.  Minister 
Olavarria  answered  that  there  was  no  money  in  the  safe  of  the  treasury 
and  that  he  could  not  foresee  when  he  could  have  fimds,  and  that, 
therefore,  he  was  sorry  not  to  be  able  to  give  satisfaction  or  to  make 
any  promise  for  the  future,  however  small  the  sum  might  be. 

In  the  statement  addressed  on  the  10th  of  October  of  the  same  year 
to  the  President  of  the  Republic,  then  Gen.  Ignacio  ^Vndrade,  by  the 
same  director,  Gustavo  Simon,  setting  down  the  motives  why  he  had 
determined  to  suspend  the  exploitation  of  the  railway  from  Santa 
Bárbara  to  La  Vigia,  the  following  facts  are  made  to  appear: 

That  in  September,  1899,  there  was  a  moment  of  peace,  and  some  receipts  were  obtained, 
but  that -the  revolution  reappeared  on  the  27th  of  September,  and  thenceforward  the  traffic  was 
paralyzed  and  Maracaibo  incommunicated  with  Santa  Bárbara;  that  meanwhile  the  Govern- 
ment did  nothing  to  free  the  company  from  the  revohitionarics  and  enable  it  to  proceed  on 
the  exploitation:  that  it  had  remained  without  one  cent  in  its  safe,  uith  all  the  expense  in. 
force  ami  without  any  income;  that  in  Paris  the  coupons  of  the  5  per  cent  Venezuelan  loan 
of  188G  had  not  been  paid,  although  due  on  the  1st  of  July,  1898:  that  its  claims  presented  to 
the  Government  for  damage  and  prejudice  had  not  been  satisfied,  and  that  the  circumstance 
to  be  most  regretted  was  that  they  had  not  succeeded  in  obtaining  from  the  Government  the 
payment  of  the  accounts  for  freight,  money  lent,  sundiy  effects  furnished,  etc.,  which 
amounted  on  the  30th  of  September,  1899,  to  200,000  bolivars,  as  there  existed  arrears  from 
the  year  1884,  and  that  on  the  3d  of  October  the  President  of  the  State  of  Zulia  had  asked  the 
colnpany  for  the  Santa  Bárbara  steamer  to  carry  a  commission  to  Encontrados  and  had  not 
been  able  to  pay  for  two  piles  of  wood  available  on  board  and  a  sum  of  300  bolivars  on  account 
of  the  traveling  expense,  as  it  had  promised  to  do. 

In  virtue  of  the  facts  above  narrate  I,  the  director  of  the  company 
concluded  his  statement  to  the  President  of  the  Republic  with  the 
following  declaration  : 

First.  There  is  no  possibilitj'  of  lealizing  any  revenue  in  the  exploitation  of  the  line,  «v  the 
revolutionaries  are  masters  of  it,  and  until  this  date,  the  1st  of  October,  there  is  no  hope  that 
the  Government  may  recover  that  place. 

Second.  The  Government  of  Venezuela  can  not  ¡hi y  the  comjyiny  any  of  its  debts,  or  even 
the  least  sum,  oi-  anv  sum  l)v  installments. 


398       FRENCH    COMPANY    OF    VENEZUELAN    RAILROADS    CASE. 

Tliird.  The  company  Aa*  no  longer  any  resources,  as  they  haiv  all  been  exhausted,  and  it  has 
sent  all  its  nionev  from  Paris  to  meet  the  expense  of  its  line,  while  there  ims  no  revenue  on 
account  of  frequent  revolutions. 

The  company,  considering  that  this  .state  of  thin<rs  has  cau.sed  it  enor-moiis  prejudice  and 
amage  and  that,  if  it  continues  to  make  the  expense  in  course,  it  will  directly  go  to  bank- 
ruptcy, it  is  compelled  through  main  force  to  suspend  the  exploitation  of  its  line  and  its  steamer 
Santa  Barbara  until  an  arrangement  has  Ijeen  entered  into  with  the  National  Goverament 
of  the  United  States  of  Venezuela,  and  declares  that,  in  the  meantime,  whether  the  railway 
is  or  not  in  the  hands  of  the  revolutionaries,  .said  Government  is  responsible  for  all  damage, 
prejudice,  faults,  deteriorations  that  may  he  caused  to  the  rolling  stock,  the  permanent 
way,  the  stores  in  the  warehouse — in  short,  to  all  the  goods  representing  the  capital  of  the 
company. 

It  is  well  undei-stood  that  tlie  company  does  not,  however,  abandon  its  lights  to  the  conces- 
sion of  said  railuny. 

The  foregoing  statement  was  addressed  in  like  terms  to  tlie  Presi- 
dent of  the  State  of  Zuha  and  to  the  minister  of  public  works. 

The  President  of  the  State  of  Zulia,  in  acknowledging  to  the  con- 
sular agent  of  France  the  receipt  of  the  foregoing  statement,  thought 
it  to  be  his  duty  to  tell  him  that  whenever,  owing  to  the  necessities  of 
war,  it  had  been  necessary  to  make  use  of  the  Santa  Bárbara  steamer, 
whether  to  mobilize  troops  or  to  avoid  that  the  enemies  should  take 
possession  of  it,  the  Government  had  always  furnished  the  fuel  as  well 
as  the  provisions  and  the  salary  of  the  employees  and  marines,  when 
the  direction  had  required  it,  and  made  several  repairs  on  the  steamer, 
which  was  in  a  ver}^  bad  condition.  He  says  in  conclusion  that,  as 
soon  as  the  reasons  which  compelled  the  Government  to  retain  said 
steamer  had  ceased,  he  would  notify  the  consular  agent  that  it  might 
be  received  by  the  person  in  charge  of  receiving  it. 

From  the  document  appearing  as  subscribed  and  dated  in  Curaçao 
on  the  22d  of  October,  1899,  by  Mr.  Simon,  and  certified  as  correct  bv 
the  deputy  administrator,  M.  Reynaiid,  it  is  apparent  that  all  the 
archives  and  printed  papers  of  the  company  had  been  closed  into 
boxes,with  a  detailed  inventory,  and  delivered  to  Mr.  d'Empaire;  that 
all  the  personnel  of  the  steamer  had  been  dismissed.  Captain  Matos 
having  made  the  inventory  of  the  Santa  Bárbara  steamer,  together 
with  the  mechanical  engineer  and  the  bookkeeper;  that  the  company 
had  the  following  advertisement  publislied  in  the  papers  El  Fonógrafo, 
El  Avisador,  and  La  Compañía  Francesa. 

The  Compagnie  Française  de  Chemins  de  Fer  Vénézuéliens  lias  the  regret  of  informing  the 
public  and  connnerce  that  on  account  of  force  majeure  it  suspends  the  exploitation  of  its  line 
and  its  steamer  Santal  Bárbara. 

The  lack  of  income  during  more  tlian  four  years,  the  revolutions,  and  the  nonpayment  by 
the  Government  of  its  debts  to  the  company  are  the  motives  inducing  tlie  company  to  ask 
for  an  arrangement  with  the  National  Government  before  continuing  its  exploitation. 

It  is  apparent  that  from  the  27  th  of  September  the  railway  line  is  in  the  hands  of  the  reiHilu- 
ionariesnnd  that  up  to  this  date,  the  12th  of  October,  there  is  no  ho}>e  that  the  Government  may 
recover  this  place. 

The  director  of  I  lie  exploit  at  ion,  K.  Si.mons. 


OPINION  OK  vp:kezuelan  commissioner.  399 

At  the  end  of  this  document  Mr.  Simon  ex])restse.s  the  h<)j)e  that 
everything  mi^ht  be  settled  before  the  c  h)se  of  the  montli,  })eeause  he 
had  just  been  advised  that  the  President  of  the  Repubhc  of  Venezuela 
had  resigned  and  left  Caracas  on  a  ship  of  war  for  an  unknown 
destination. 

In  a  communication  addressed  by  the  minister  of  foreign  allairs  of 
P>ance  to  Mr.  Quiévreux,  vice-consul  in  Caracas,  Mr.  d'Empaire,  the 
consular  afjent  in  Maracaibo,  appears  vested  with  the  commission  of 
watching  and  stating  the  state  in  which  the  goods  of  the  comjjany 
were. 

The  steamer  Santa  Bárbara  was  returned  to  the  company  on  its 
return  to  Maracaibo  after  the  expedition  made  on  it  by  President 
Andrade,  in  which  voyage  it  sustained  a  damage  in  one  of  the  wheels. 
Mr.  Glennie  was  appointed  overseer  of  the  seals,  and  Mr.  Aiguillon, 
late  chief  engineer  of  the  Santa  Barbara,  keeper  of  the  maritime  mate- 
rial. Mr.  d'Empaire  received  from  the  director  of  the  compaii}^  a 
sufficient  sum  to  pay  for  the  furniture,  rent,  and  the  salaries  of  the 
agents  Glennie  and  Aiguillon  and  of  the  one  at  Caracas,  during  six 
months  from  the  1st  of  December,  1899. 

In  the  fight  that  took  place  in  the  harbor  of  Maracaibo  in  the  month 
of  November,  1899,  between  revolutionarv  nationalist  forces  and 
those  of  the  Government  of  General  Castro,  the  steamer  San  Carlos 
y  Mérida,  at  anchor  in  the  harbor,  sustained,  on  account  of  bullets, 
damages  that  caused  it  to  sink,  and  the  steamer  Santa-  Barbara  also 
suffered  deteriorations  on  its  top  part.  Such  appears  from  the  testi- 
monial investigation  carried  out  by  the  consular  agent  of  France  at 
Maracaibo  at  the  request  of  Mr.  Arguillon.  The  witnesses,  Edmond 
Hainel,  Antonio  Martinez  Peña,  and  José  Vincente  González  declare 
that  the  steamer  San  Carlos  y  Mérida,  at  anchor  opposite  the  stores 
of  Rafael  Morales  and  McGregor  &  Co.,  had  wrecked  in  the  night  and 
day  of  the  1st  and  2d  of  December,  1899,  on  account  of  the  bullets 
received  in  its  hull  on  the  port  and  starboard  sides  during  the  fight 
and  the  fire  between  the  forces  of  Gen.  Cipriano  Castro  (Maracaibo 
side)  and  the  forces  of  Gen.  José  Manuel  Hernandez  (Los  Haticos  side). 

The  damages  sustained  on  its  sides  were  so  numerous,  that  the  afore- 
said steamer  sunk  at  4  p.  m.  on  the  2d  of  December,  1899. 

The  consular  agent,  Mr.  d'Empaire,  ordered  the  appointment  of 
experts  to  estimate  the  damages  sustained  by  the  steamer  Santa 
Bárbara  during  the  time  it  was  at  the  service  of  the  State,  to  which 
purpose  ^lessrs.  Eugenio  Kreutzer,  a  French  mechanic  domiciled  in 
that  town,  and  ]\ianuel  Maria  Loto,  a  captain  in  the  Venezuelan  navy, 
commander  of  the  Venezuelan  steamer  Progreso.  Said  experts — after 
having  examined  the  steamer  and  its  engines  and  considered  that  said 
vessel  has  been  kept,  from  the  last  days  of  j\iay  of  the  preceding  year 
until  the  first  days  of  November,  constantly  in  motion  under  j)ressure. 


4(m       FRENCH    COMPANY    <>K    VENEZUELAN    RAILROADS    CASE. 

without  {^ivinji  timo  to  make  any  repairs  on  it  or  repaint  it,  which  cir- 
cumstance increased  the  vahie  of  the  repairs  required;  that,  throuf^h 
a  constant  labor  tlie  enfjinc  had  suffered  a  ^reat  deal;  that  during;  the 
last  vovatje  it  made  in  tlîc  river  Zulia,  at  the  service  of  the  Govern- 
ment, a  piece  of  timber  entirely  broke  one  of  its  wheels — valued  the 
damatres  at  10,000  bolivars,  without  beinfj  able  to  make  an  especial 
mention  as  to  the  state  of  the  hold  of  the  steamer  that  was  submerfjed. 

On  the  20th  of  January,  1000,  Mr.  d'Empaire  communicates  to  the 
direction  that  there  was  an  indi\adual  that  desired  to  know  the  lowest 
price  of  the  little  steamer  Reliance,  with  a  view  to  seeinjí  whether  he 
could  buy  it,  and  that  he  thou<;ht  that  the  company  would  transact  a 
trood  business,  if  it  succeeded  in  sellinfi:  it  for  any  price. 

On  the  9th  of  December,  1890,  Mr.  Simon  left  Venezuela  for  Havre. 

It  is  equally  apparent  that  the  company  posteriorly  disposed, 
accordino;  to  its  own  declaration,  of  the  two  steamers.  Reliance  and 
Santa  Barbara,  for  the  sum  of  1.100  francs  the  former  and  10,000 
bolivars  the  latter. 

On  the  3d  of  February,  1900,  the  administration  of  the  company 
addressed  a  letter  to  the  President  of  the  Republic,  proposino;  to  him 
the  reorfjanization  of  the  exploitation  of  the  railway  and  maritime 
lines,  upon  the  delivery  which  the  Venezuelan  Government  was  to 
make  to  him  of  a  part  payment  of  at  least  300,000  francs  in  cash, 
calculated  on  the  sums  which  he  considered  were  owed  to  said  lines 
both  by  the  nation  and  the  States,  as  follows: 

(A)  A  sum  of  300^000  francs  for  reimbursement  of  transportation 
expense  and  requisitions  carried  out  by  order  of  the  authorities. 

(B)  A  sum  of  250,000  bolivars,  at  which  the  company  valued  the 
minimum  oí  the  indemnity  which  the  authorities  were  owln»  to  it  for 
the  material  reparation  of  the  damao^e  done  to  all  its  pro])erties,  rail- 
way, steamers,  innnovables,  material,  etc.,  during:  the  last  campaipi. 

(C)  A  sum  of  105,000  francs  monthly  from  the  1st  of  July,  1899,  as 
indemnity  for  the  losses  that  said  lines  had  sustained  ft'om  that  date 
on  account  of  the  almost  absolute  suppression  of  the  trailic  and  the 
immobilization  of  the  means  of  exploitation.  The  total  of  those 
monthly  debts  that  woiUd  be  owed  to  them  on  the  1st  of  May,  1901. 
would  amount  to  1 ,  050,000  francs. 

The  true  motives  that  compelled  tlie  French  company  to  suspend 
the  exploitation  of  tlie  railway  line  and  of  the  steamer  Santa  lidrhara, 
as  appearino;  expli(  itly  declared  l)y  the  director  of  the  company,  Mr. 
Simon,  in  his  statement  addressed  to  the  President  of  the  Republic,  on 
the  12th  of  October,  1899,  from  the  advertisements  published  in  dif- 
ferent news})apers  and  from  all  the  documents  of  this  claim,  were  only 
the  lack  of  resources  in  the  treasury  of  the  company,  of  funds  proceed- 
ing from  the  tniilic,  owin^  to  the  fact  that  this  had  ceased,  on  account 
of  the  re\()liitioiiary  ev(Mits  which  recommenced  in  Sejitember  and 
continued  in  October  of  tlic  same  yeai-.     The  company  exhausted  all 


OPINION    OF    VENEZUELAN    COMMISSIONER.  401 

its  available  resources,  to  the  extent  of  being  forced  to  eliminate  the 
personnel  of  its  employees. 

The  requisitions  made  by  the  authorities  of  the  State  of  Zulia  con- 
cerning the  steamers  and  trains  of  the  company,  with  a  view  to  satis- 
fying the  necessities  of  the  pulilic  service  and  restoring  order  consti- 
tute the  exercise  of  a  power  vested  in  the  authorities  of  a  State  with 
a  purpose  to  provide  for  the  security  of  lakes,  rivers,  and  ways  of  com- 
munication and  with  a  purpose  also  to  subtract  any  clement  of  struggle 
from  the  revolutionary  action,  thus  cooperating  in  the  restoration  of 
order  and  the  consolidation  of  peace.  Those  requisitions  were  volun- 
taril}?^  accepted  by  the  company,  as  it  was  by  its  contract  bound  to 
accept  them,  and  the  nature  of  its  business  and  its  own  advantage 
required  it  to  do  so.  They  (  ould  only  give  rise  to  the  obligation,  on  the 
part  of  the  Venezuelan  authorities,  to  indemnify  the  company  for  the 
service  rendered  and  the  direct  damage  that  the  means  of  locomotion 
seized  might  sustain  during  that  service,  through  motives  that  might 
be  attributed  to  the  especial  nature  of  the  same  services,  which  obliga- 
tion was  determined  and  valued  by  the  administration  council  of  the 
company  in  its  report  rendered  before  the  general  meeting  of  share- 
holders, inserting  it  in  the  balance  of  the  31st  of  December,  1901,  for  a 
sum  of  203.529.70  francs. 

The  government  of  the  State  of  Zulia  and  therefore  the  National 
Government  contracted  the  obligation  of  paying  to  the  company  the 
amount  of  those  accounts,  and  this  debt  has  never  been  denied  by  the 
constituted  authorities.  The  local  government  of  the  State  of  Zulia 
could  not  in  the  days  the  aforesaid  requisitions  took  place  nor  could 
the  minister  of  finance  at  Caracas  at  the  date  he  was  visited  by  Mr. 
Simon  make  any  part  payment  on  account  of  what  might  be  owed  to 
the  company.  This  impossibility  is  comprehensible  under  those  cir- 
cumstances, under  which  every  resource  was  consumed  by  the  impera- 
tive necessities  of  war,  and  both  the  National  Government  and  the 
government  of  the  State  of  Zulia  were  deprived  of  a  large  portion  of 
the  ordinary  revenue  on  account  of  the  same  disturbance  which 
deprived  the  company  of  the  proceeds  of  its  ordinal  y  traíHc  on  the  line. 

It  is  neither  just  nor  equitable,  therefore,  nor  is  it  based  on  any  law, 
that  the  Government  of  Venezuela,  because  it  could  not  pay  in 
moments  of  penury  of  its  revenues  the  sum  of  more  than  200,000 
bolivars  to  which  the  company  made  its  credit  amount,  and  of  which  it 
urgently  needed  to  continue  in  the  activity  of  its  transactions,  should 
be  responsible  for  the  sum  of  18,000,000  bolivars,  at  which  the  com- 
pany estimates  the  integral  value  of  its  capital  and  obligations  (bonds). 

When  a  debt  is  contracted  to  be  paid  in  cash,  it  is  a  universal  law 

that  the  nonpayment  thereof  in  due  time  only  constitutes  a  delay 

which  binds  the  debtor  to  pay  interest  at  the  rate  agreed  upon  or  at 

the  legal  rate,  this  when  liquidated  accounts  or  debts  are  the  question. 

S.  Doc.  533,  59-1 26 


402       FRENCH    COMPANY    OF    VENEZUELAN    RAILROADS    CASE. 

The  larger  part  of  the  credit  that  the  company  pretended  to  collect 
in  the  month  of  September,  1899,  from  the  minister  of  finance  at 
Caracas,  re({uiring  from  him  a  part  payment,  proceeded  from  debts 
contracted  by  the  government  of  the  State  of  Zidia  and  approved  by 
its  legislature  in  previous  years,  but  the  company  at  no  time  thereto- 
fore had  endeavored  to  obtain  the  payment  of  those  accounts  from 
the  National  Government,  nor  is  it  proved  that  the  steps  taken  near 
the  government  of  the  State  before  the  revolutionary  events  of  June 
and  July,  1890,  were  active. 

The  insistence  shown  by  the  company  in  those  moments,  placing 
the  government  of  the  State  in  the  alternative  of  delivering  a  sum 
which  it  had  not,  or  eliminating  the  personnel  of  its  steamers;  the 
silence  kept  by  the  direction  in  Paris  for  several  days,  leaving  its  agent 
at  Maracaibo  engaged  in  a  discussion  which  grew  more  and  more 
bitter  with  the  authority,  and,  finally,  the  violent  determination  taken 
by  Mr.  Simon  of  entirely  suspending  traffic,  dismissing  all  the 
employees  of  the  line  and  placing  under  seal  all  the  appurtenances 
thereof,  precisely  when  a  change  of  administration  and  the  victory  of 
the  revolutionary  arms  promised  the  prompt  pacification  of  the  country, 
only  show  the  deliberate  purpose  of  abandoning  the  enterprise, 
creating  a  situation  entirely  alienate  from  the  conditions  of  the 
original  contract,  and  only  tending  to  accumulate  difficulties,  present- 
ing to  the  Government  of  Venezuela,  as  a  previous  condition  for  the 
reestablishment  of  traffic,  new  and  more  exacting  claims,  as  well  as 
demands  of  money.  It  was,  therefore,  a  perfectly  voluntary  act,  due 
to  the  purely  financial  causes,  connected  with  the  state  of  insolvency 
in  which  the  company  had  been  for  some  years  past.  That  abandon- 
ment has  continued  since  the  suspension  of  the  exploitation  was 
determined  by  the  direction  of  the  company.  All  the  damages  that 
may  have  been  caused  by  that  abandonment  to  the  material  of  the 
line,  and  that,  it  is  natural,  must  have  been  very  considerable,  owing 
to  the  intemperature  in  which  it  has  remained  for  four  years  and  to 
the  want  of  all  care  on  the  part  of  its  owners,  only  affect  the  responsi- 
bility of  those  who  adopted  the  measure,  save  the  excuse  they  have 
adduced,  the  force  majeure  produced  by  the  exhaustion  of  means 
and  resources  to  continue  the  exploitation. 

The  free  disposal  of  its  property  has  always  remained  within  the 
reach  of  the  company,  as  is  proved  by  the  circumstance  that  the  con- 
sular agent  of  France  at  Maracaibo  has  constantly  been  the  custodian 
thereof,  and  that  it  was  .sealed  to  that  purpose. 

The  measure  projected  by  the  National  Government  in  March,  1901, 
of  making  an  inventory  of  the  line,  of  its  permanent  and  rolling  stock, 
and  of  the  vessels  and  other  apjiurtenances  which  the  construction 
company  had    abandoned,   as    appears   from   the   same   resolution, 


OPINION    OF    VENEZUELAN    COMMISSIONER.  403 

was  tried,  taking  into  consideration  the  oilicial  capacity  of  Mr.  Julio 
d'  Empaire  and  his  commission  as  custo(Uan  of  the  property  of  the 
company,  and  to  that  ])urpose  the  National  Government  intrusted 
said  agent  with  the  commission  of  attending  to  the  formation  of 
the  inventory  and  reporting,  with  the  remarks  he  might  think  perti- 
nent, about  the  actual  state  of  that  property. 

Mr.  d'Emj)aire  declined  the  commission,  stating  that  he  had  been 
oliicially  designed  to  take  care  of  the  material,  tools,  and  archives  of 
the  company,  which  proved  that  they  were  not  abandoned  and  that 
the  company  had  but  suspended  the  exploitation. 

Mr.  d'Empaire  adds,  in  his  reply  to  the  (lovernment,  dated  the  26th 
of  March,  1901,  that  whenever  he  has  to  ai)ply  to  the  authorities, 
either  of  the  State  of  Zulia  or  of  that  of  Mérida,  in  his  capacity  of  in 
charge  of  taking  care  of  the  interests  of  the  company,  asking  for  the 
suppression  of  some  abuse  or  for  support  on  the  part  of  the  Govern- 
ment, lie  has  always  been  answered  and  attended  to,  which  clearly  shows 
on  the  one  side  that  the  company  has  always  preser'ved  its  rights  to  the 
line  and  its  material,  and  on  the  other  that  such  rights  have  at  all  times 
been  recognized  by  the  (Tovernment  of  Venezuela. 

In  view  of  tliis  reply,  the  Government  thought  it  advisable  to  leave 
things  in  the  same  state  they  were,  as  it  does  not  appear  that  it  has  in 
any  sense  attempted  to  interfere  with  the  determinations  of  the  com- 
pany regarding  the  free  disposal  or  maintenance  of  its  goods  on  the 
railway  line. 

The  damage  those  goods  have  sustained,  according  to  the  technical 
report  presented  to  the  minister  of  public  works  by  Drs.  Francisco 
Arroyo-Parejo  and  Eliodoro  Ocanto,  attorney-general  and  engineer, 
respectively,  at  the  orders  of  the  ministry,  is  due. 

"  besides  the  natural  causes  of  the  exposition  to  intemperature  and  tlie  weather,  to  tlie  very 
especial  one  that  the  company  did  not  cairy  out  the  drawing  in  accordance  with  the  rules 
and  principles  ordered  hy  science  in  enterprises  of  such  a  nature,  for  the  line  is  constructed 
on  lands  the  topog-aphical  configuration  of  which  is  unfit  thereto," 

and  said  report  adds  that 

"if  it  is  certain  that  the  inundations  of  the  Chamas  River  havt-  cooperated  in  that  destruc- 
tion it  is  also  true  that  the  company  has  not  made  such  efforts  or  used  such  means  as 
were  necessary  to  prevent  the  damage." 

The  report  adds: 

Without  the  help  of  the  drains  cut  parallel  to  the  road  (during  the  construction)  in  order  to 
extract  therefrom  the  earth  necessary  for  the  embankments,  wiiich  drains  will  always  i>e  the 
cause  of  the  destruction  of  the  line,  the  undermining  of  t  he  gro'und  would  not  have  taken  place, 
for  the  waters  proceeding  from  the  inundations  would  not  stagnate  on  each  side  of  the  plat- 
form, but  would  go  through  culverts  conveniently  situated,  following  the  natural  depres- 
sions of  the  ground,  to  Iw  lost  on  the  plains;  and  to  place  again  tiiis  line  in  a  state  of  good 
service  it  is  necessary  either  to  make  the  Chamas  River  return  to  its  former  bed  or  to  stop 


404       FKKXCH    COMPANY    OF    YKNEZUKLAN    KAILROADS    CASE. 

up  the  drains  parallel  to  tlio  line,  raising  the  level  of  the  line  with  good  materials,  and  to 
make  serious  repairs  to  the  rolling  stock,  which  is  almost  tantamount  to  renewing  it  in  its 
entirety. 

For  all  the  ioasons  aforesaid  and  in  virtue  of  the  careful  examina- 
tion of  all  the  précédents  of  the  case  the  Government  of  Venezuela  can 
not  be  held  responsible  for  the  damage  that  the  "Comi)a<;nie  Française 
de  Chemins  de  Fer  Vénézuéliens"  may  have  sustained,  for  the  sus- 
pensiim  of  the  exploitation  of  the  line  and  the  abandonment  in  which 
it  has  kept  its  property,  or  for  the  consecjuences  that  nature,  the 
weather,  and  the  bad  construction  of  the  works  may  have  produced  in 
its  concerns. 

Neither  can  this  commission  fix  the  amount  owed  by  the  Govern- 
ment of  Venezuela  to  the  above-mentioned  company  for  services 
rendered  by  its  railway  and  line  of  steamers,  for  those  accounts  have 
not  been  presented  or  been  the  object  of  any  examination  in  this 
connnission. 

With  regard  to  the  damage  done  by  revolutionary  parties  on  the  line 
from  Santa  Bárbara  to  La  Vigia  during  the  time  it  was  occupied  by 
said  parties,  neither  this  fact  nor  the  responsibility  of  the  authorities 
then  constituted  in  the  State  of  Zulia  has  })een  proved. 

The  only  thing  that  has  been  proved  is  the  damage  sustained  by  the 
steamer  Santa  Bdrhara  while  at  the  service  of  the  government  of  the 
State  of  Zulia,  which  damage  was  valued  at  the  sum  of  10,()()()  bolivars 
])y  the  experts  appointed  by  the  consular  agent  of  France  at  Maracaibo. 

The  prejudice  caused  the  company  by  the  sinking  of  the  steamer 
San  CárloH  y  Mérida,  wdiich,  as  it  appears,  was  out  of  all  active  servic(> 
since  long  before  and  which  was  not  apt  to  be  utilized,  does  not  affect 
the  responsibility  of  the  Government  of  Venezuela,  for  it  appears  fr(.)m 
the  evidence  produced  that  the  sinking  took  place  on  account  of  the 
firing  exchanged  in  a  deed  of  arms,  and  is  therefore  recognized  in 
international  law  as  an  accident  ineilicient  to  cause  any  responsibility 
on  the  part  of  the  constitutetl  authorities. 

It  is  my  opinion,  therefore,  that  the  company  is  entitletl  to  an 
indemnity  of  10,000  bolivars  and  interest  thereon  at  the  rate  of  3  per 
cent  from  the  12th  of  October,  1899,  which  the  Government  of  Vene- 
zuela will  pay  for  deteriorations  of  the  steamer  Santa  Bárbara 
while  at  its  service;  that  its  rights  nmst  be  reserved  to  it  to  obtain 
payment  of  the  accounts  for  freight,  transportation  of  troops,  and  the 
use  of  two  steamers  by  the  authorities  of  the  State  of  Zulia  didy 
formulated  and  proved  and  which,  as  expressed  in  the  balance  of  the 
:nst  of  October,  1899,  amouiUcd  on  that  date  to  the  sum  of  203,529.70 
francs  with  interest  thereon  from  the  respective  dates  at  which  they 
had  their  origin;  that  to  the  Venezuelan  Government  the  rights  and 
claims  must  also  be  reserved  which  may  ])ertain  to  it  for  the  sus])ension 
of  traille,  the  abandonment  of  the  ('X[)loitation  and  ensuing  damage 


OPINION    OF    FRENCH    COMMISSIONER.  405 

caused  to  the  line  through  lack  of  maintenance,  and  that  for  all  the 
rest  the  claim  presented  must  bo  disallowed. 
Caracas,  AugnM  28,  190S. 

NOTE    BY    THE    VENEZUELAN    COMMISSIONER. 

This  opinion  was  presented  at  the  sitting  of  the  28th  of  August,  1903,  and  an  understanding 
was  not  arnv(\d  at  witli  the  Fronch  arl)itrator,  who  was  of  the  opinion  that  the  company 
must  be  allowed  the  sum  of  18,4<S3,(X)0  bolivars,  to  whicii  the  claim  amounted,  said  company 
abandoning  to  the  Government  of  Venezuela  the  railway  with  all  its  appurtenances  and  the 
concession.  The  two  commissioners  having  failed  to  agree,  this  claim  was  referred  to  the 
decision  of  the  umpire. 

OPINION  OF  THE  FRENCH  COMMISSIONER. 

I  have  accorded  to  the  French  Company  of  Venezuelan  Railroads 
an  indemnity  of  18,483,000  bolivars,  considering  that  the  Venezuelan 
Government  is  responsible  for  the  ruin  of  the  company,  and  that  in 
equity  this  responsibility  carries  with  it  the  rescission  of  the  contract 
signed  between  the  company  and  the  Venezuelan  State. 

It  seems  to  me  beyond  doubt  that  the  Venezuelan  Government 
has  placed  the  company  in  the  necessity  of  ceasing  the  exploitation 
of  the  line  by  depriving  it  of  the  considerable  sums  which  it  owed  it 
from  the  fact  of  the  guaranty  and  from  the  fact  of  the  requisitions. 

According  to  the  contract  the  state  guaranteed  to  the  company 
the  7  per  cent  of  the  capital,  and  this  guaranty  wí:s  to  be  paid  in 
hard  cash.  These  provisions  are  repeated  in  the  three  stages  which 
the  contract  in  question  has  passed  tlirough. 

But  from  1888  to  1896  the  State  neglected  to  fulfill  the  obligations 
accepted  at  the  time  of  the  signing  of  this  bilateral  act.  It  did  not 
pay  a  centime  of  the  guaranty  promised  of  which  the  part  falling 
due  December  31,  1895,  represented  already  4,725,000  bolivars.  It 
is  not  surprising  that  the  company,  deprived  of  tliis  sum  upon  wliich 
it  had  the  right  to  count,  then  found  itself  in  embarrcssment.  It  had 
made  rll  sacrifices;  with  only  the  resources  of  its  credit,  it  had  already 
finished  the  line  provided  in  the  contract  t-nd  f  ssured  for  three  years 
the  regular  exploitation,  in  spite  of  inundations,  earthquakes,  and 
revolutions,  factors  equi-lly  unforeseen  and  very  capable  of  bringing 
trouble  to  the  most  wisely  established  provisions.  It  was  natural 
that  it  should  have  reached  the  limit  of  its  resources  and  appealed 
for  the  support  which  the  State  ought  to  have  lent  it  a  long  time 
previous. 

It  is  this  moment  that  the  Government  of  Caracas  chose,  taking 
advantage  of  the  circumstances  which  itself  had  prepared,  to  impose 
a  treaty  ruinous  to  the  company,  obliged  to  pass  under  these  Caudine 
Forks."     It  reduced  to  1,950,000  bolivars  the  total  amount  of  all  the 


o  Caudine  Forks  (FurculseCaudinse),  the  name  of  an  Italian  village  famous  in  Roman  his- 
tory on  account  of  the  disaster  which  there  befell  the  Roman  army  during  the  second  Sam- 
nite  war.  in  321  B.  C. 


406       FRENCH    COMPANY    OF    VENEZUELAN    RAILROADS    CASE. 

claims  that  the  company  Diight  present,  as  well  from  the  pohit  of 
the  ^aranty  as  from  anj'^  other  point,  and  promised  2,500,000  boli- 
vars for  the  abandonment  in  the  future  of  every  riglit  of  ^laranty. 
Then,  instead  of  paying  in  specie  these  promised  simis,  it  remitted 
them  in  bonds  which,  having  ceased  to  ])ear  interest,  are  to-day  no 
longer  negotial)le,  so  that  certain  creditors  of  the  company,  whose 
borrowed  money  had,  instead  of  the  money  of  the  guaranty,  permit- 
ted the  finishing  of  the  construction  iind  the  pursuit  of  the  exploita- 
tion, hold  these  depreciated  bonds,  which  are  only  in  their  hands 
a  lien  without  viilue. 

The  Venezuelan  State  has  then  found  the  means  to  free  itself  of 
its  contractual  obligations  without  opening  its  purse.  '  Not  only  did 
it  elude  in  this  way  the  clauses  of  the  contract  relative  to  the  guaranty 
in  reducing  the  latter  to  zero,  but  it  never  paid  the  numerous  requisi- 
tions for  w^hich  i-t  different  times  the  com])any  had  sent  it  the  drafts. 

So  the  company,  deprived  of  the  millions  of  the  guaranty  and  of 
the  remuneration  of  the  services  rendered,  saw  itself  at  the  same  time 
dispossessed  of  its  rolling  stock,  employed  in  transporting  free  of 
charge  troops  and  military  equipments,  while  the  merchandise  lay 
in  the  storehouses  at  the  mercy  of  guerrillas,  while  its  personnel  was 
maltreated  or  imprisoned,  its  director  wounded  to  death,  its  boats 
requisitioned  or  destroyed,  its  real  estate  encroached  upon,  its  cash 
boxes  emptied. 

Is  it  not  evident  that  the  only  cause  of  the  arrest  of  the  exploitation 
was  the  situation  made  for  the  company  by  the  Government  itself, 
which  in  every  w  ay  in  its  power  had  rendered  this  exploitation  impos- 
sible? 

Moreover,  the  more  time  passed  the  greater  the  increase  of  the 
debts  of  the  company  and  the  difficulty  for  it  to  resume  the  exploita- 
tion of  the  line;  in  fact,  the  interest  on  the  sums  due  is  accumulating, 
its  idle  macliinery  damaged,  the  track  is  going  down  from  the  f;:ct 
of  the  inclemencies  of  the  climate  and  from  the  use  which  the  inhabit- 
ants are  making  of  it. 

In  these  conditions  it  would  not  be  an  equitable  solution  to  compel 
the  company  to  resume  the  exploitation  in  consideration  of  the  mere 
payment  by  the  State  for  the  ravages  and  requisitions.  It  is  only 
by  the  rescission  of  the  contract  that  equity  can  be  satisfied.  The 
Venezuelan  State  could  not  complain,  since  it  has  never  executed 
it  even  after  having  strangely  corru])ted  it. 

In  consequence  of  this  rescission,  the  Venezuelan  (iovernment  will 
become  possessor  of  all  that  the  company  owns  in  Venezuela — that 
is  to  say,  of  the  concession,  of  the  line,  of  the  buildings,  of  the  rolling 
stock,  of  the  maritime  material,  in  the  cimdition  hi  which  it  is  actually 
found.  In  exchange  it  would  have  to  reimburse  the  comiinny  for 
the  sums  expended  by  it,  which  include  its  ca])ital — say.  :?.()()(). 000 


OPINION    OF    FRENCH    COMMISSIONER.  407 

bolivars — and  the  value  of  the  obligations  and  bonds  emitted,  with 
arrears  of  revenues  due  to  the  bearers — say  30,500,000  bolivars. 

Moreover,  it  ought  to  take  account  of  the  interest  of  these  sums 
and  of  the  profits  of  which  the  company  has  been  deprived.  The 
indemnity  would  reach  without  doubt  two  score  millions.  But  for 
all  these  valuations  it  would  be  necessary  to  admit  the  affirmations 
of  the  company  or  to  engage  in  interminable  investigations,  which 
would  still  leave  many  of  the  points  in  doubt. 

It  is  the  most  simple  means  of  determining  the  value  of  the  con- 
cession; it  does  away  with  all  investigation  and  all  chance  of  error; 
it  has,  moreover,  the  advantage  of  being  drawn  from  the  contract. 

The  State  and  the  company  have  both  recognized  that  the  conces- 
sion was  worth  18,000,000  bolivars  for  a  line  of  60  kilometers — the 
first  according  it,  the  second  accepting  the  payment  of  a  guaranty 
of  7  per  cent  upon  a  kilometric  value  of  300,000  bolivars.  Taking 
back  the  concession,  the  State  will  be  free,  so  far  as  the  company  is 
concerned,  paying  to  it  this  sum  by  way  of  indemnity. 

It  is  fitting  to  add  to  it  the  value  of  the  maritime  material,  say 
483,000  bolivars;  the  service  of  navigation,  the  object  of  a  special 
article  of  the  contract,  not  having  entered  into  the  line  of  account 
at  the  time  of  the  establishment  of  the  calculation  of  the  guaranty. 

It  is  then  a  sum  of  18,483,000  bolivars  that  the  Government  ought 
to  pay  to  the  French  Company  of  Venezuelan  Railroads. 

The  company,  through  its  advocate,  claims,  besides,  the  adjudication 
of  interest  at  the  rate  of  7  per  cent,  which  in  my  opinion  does  not  har- 
monize ^v^th  the  manner  in  which  this  indemnification  may  be  esti- 
mated. We  are  now  dealing  with  a  simple  exchange  of  values  without 
any  consideration  of  profits  or  interest. 

If  the  interest  were  to  be  estimated  would  it  not  be  also  necessar}^  to 
take  into  account,  for  instance,  the  products  of  the  exploitation  of 
the  line  while  it  was  in  operation  and  deduct  them  from  the  amount  of 
the  indemnity  ? 

My  colleague  does  not  share  my  opinion.  He  has  declared  the 
claim  of  the  company  to  be  groundless  and  has  accorded  it  only  the 
right  to  an  indemnity  of  10,000  bolivars  for  the  damage  suffered  by 
the  steamer  Santa  Bárbara,  and  reserved  the  privilege  of  claiming 
from  the  A^enezuelan  Government,  by  presenting  the  necessar}^  justifi- 
cation, the  sums  due  for  requisitions,  with  the  corresponding  interest. 
He  has  reserved  equally  the  rights  of  the  Venezuelan  Government  for 
the  fact  of  the  abandonment  of  the  exploitation. 

Doctor  Paúl  has  published  a  "dictamen"  wliich  is  a  regular  defense 
of  the  Venezuelan  State.  I  have  not  been  able  to  follow  him  on  this 
ground,  the  .position  of  arbitrator  not  authorizing  me,  in  my  opinion, 
to  produce  arguments  in  favor  of  one  of  the  two  parties  in  the  case. 
Moreover,  the  company  has  intrusted  to  an  advocate  at  the  court  of 


408        FKKMiH    Cít.Ml'ANV     <»K    VKNKZIKLAN     KAILK(»AI>S    CASK. 

appeal  at  Paris,  Mr.  Dacraigne,  the  care  of  replying  point  by  point  to 
the  plea  of  Doctor  Paúl. 

It  only  remains  for  me  to  call  the  particular  attention  of  the  umpire 
to  a  few  observations. 

In  the  first  place,  I  have  taken  it  upon  myself  to  get  information  de 
visu  of  the  condition  of  the  line  from  Santa  Barbara  to  El  Vigia.  I 
then  went  on  board  the  P>ench  cruiser  Joutfroy  on  the  south  of  the 
lagoon  of  Maracaibo.  Then  I  went  up  the  river  Escalante  as  far  as 
Santa  Bárl)ara.  There  I  inspected  in  detail  the  estal)lishments  of  the 
company,  and  followed  the  line  on  foot  for  several  kilometers.  I 
observed  that  the  company  had  neglected  nothing  to  place  the  service 
of  merchandise  and  passengers  in  excellent  condition.  A  large  rolling 
stock  was  found  at  Santa  Bárbara,  where  the  buildings  of  the  com- 
pany include,  besides  the  passenger  station,  the  depot  for  merchandi-se, 
the  director's  office,  vast  storehouses  for  the  materials,  and  large  work- 
shops supplied  with  machines,  tools,  and  material  for  repairs  of  all 
kinds.  In  spite  of  the  numerous  repairs  which  these  buildings  and 
this  material  w^ould  require  after  five  years  of  abandonment,  the)" 
are  far  from  having  no  value  and  from  being  of  no  use. 

In  the  second  place,  it  is  not  superfluous  to  recall  that  a  claim  in  all 
points  analogous  to  the  claim  of  the  French  Company  of  Venezuelan 
Railroads  has  been  presented  by  the  English  company  of  the  railroad 
from  Puerto  Cabello  to  Valencia  to  the  British- Venezuelan  Mixed  Com- 
mission which  sat  last  year  at  Caracas  under  the  presidency  of  an 
American  umpire. 

This  English  company  had  likewise  ceased  its  traffic,  which  it  has 
since  resumed,  because  of  the  n(mpayment  of  a  guaranty  promisetl,  and 
because  of  requisitions.  It  obtained,  if  I  am  well  informed,  an  indem- 
nity of  7,000,000  bolivars  gold.  It  had  been  less  tried  than  the  French 
companj',  whose  terminus  at  Santa  Bárbara  is  upon  a  river  inaccessi- 
ble to  warships,  in  a  region  which  is  entirely  out  of  reach  of  action  of 
foreign  navies,  while  Puerto  Cabello,  head  of  the  line  of  the  English 
company,  can  be  visited  l)y  European  squadrons. 

Finally,  while  the  foreign  claimants  will  receive  in  gold  the  amount 
of  indemnities  which  have  been  allowed  them,  the  French  claimants 
will  have  to  be  satisfied,  according  to  the  terms  of  the  protocol  of 
Paris,  with  the  payment  in  bonds  of  the  di])lomatic  debt. 

Thanks  to  the  concession  consented  to  by  the  French  Government 
to  allow  the  Venezuelan  Government  to  pay  its  debts  with  greater 
facility,  the  figure  of  the  French  indemnities  finds  itself  in  reality 
singularly  reduced. 

The  bonds  in  question  having  undergone  a  depreciation  of  60  i)er 
cent,  if  the  umpire  ])artakes  of  the  opinion  of  the  French  arbitrator,  it 
is  in  reality  only  a  sum  of  8,500,000  bolivars  in  gold  which  the  French 
company  woidd  be  entitled  to  receive  and  the  \'enezuclan  Government 
obliged  to  pay. 


ADDITIONAL    OPINION    OK    VENEZUKLAN    COMMISSIONER.        409 

The  value  of  the  concession  or  of  sums  disbursed  by  the  company  is 
far  from  this  amount. 

Paris,  September  13,  1904. 


ADDITIONAL  OPINION  OF  THE  VENEZUELAN  COMMISSIONER. 

I  have  most  carefTilly  examined  the  brief  prepared  by  my  learned 
colleao:ue,  bearing  date  of  September  13,  1904,  explanatory  of  his  opin- 
ion at  the  sitting  of  the  commission  held  in  Caracas,  August  28,  1903. 
I  have  also  read  the  brief  and  the  opinion  submitted  by  Maître 
Dacraigne,  which  is  annexed  thereto.  But  I  have  not  been  able  to 
find  in  either  of  these  documents  sufficient  reasons,  based  upon  right 
and  justice,  to  convince  me  that  my  opinion  submitted  at  the  session 
above  mentioned  does  not  adhere  most  strictly  to  the  truth  as  estab- 
lished by  facts,  as  well  as  to  the  statutory  and  common-law  precepts 
which  are  applicable  to  such  facts  in«  order  to  find  and  establish  the 
liability  of  the  A^enezuelan  Government,  while  rejecting  all  that  can 
not  be  held  as  good  and  sufficient  grounds  for  liability.  Under  such 
circumstances  I  am  satisfied  that  the  grounds  upon  which  my  opinion 
was  based  still  subsist  as  strong  as  ever,  and  I  may  say  stronger  than 
ever,  as  the  new  line  of  argument  introduced  b}^  the  French  commis- 
sioner and  Maître  Dacraigne  seems  to  strengthen  my  former  opinion, 
as  stated. 

Both  these  gentlemen  hold  as  a  powerful  reason  to  grant  and  demand 
the  indemnification  under  discussion  that  the  agreement  made  between 
the  Venezuelan  Government  and  the  French  Company  of  Venezuelan 
Railroads  under  date  of  April  18,  1896,  by  virtue  of  which  the  7  per 
cent  guaranty  on  the  capital  of  18,000,000  francs  was  redeemed  and 
the  company  paid  up  to  December  31,  1895,  the  amount  of  her  claims 
due  as  per  balance  sheets  on  the  same  guarant}^  and  settlement  made 
for  any  other  and  all  causes  the  company  may  have  a  right  to  invoke,  was 
a  ruinous  agreement  imposed  upon  the  company,  which  found  herself 
compelled  to  pass  under  the  Caudine  Forks  of  said  compact.  This  new 
argument  is  of  such  character,  that  it  is  in}'  sincere  belief  that  no 
answer  whatever  is  needed  in  rebuttal.  Such  argument  offers, 
because  of  its  far-fetched  application,  the  most  telling  proof  of  the 
scarcity  of  grounds,  real  solid  grounds,  the  company  has  upon  which 
to  build  the  liability  of  the  A^enezuelan  Government. 

I  will  simply  remark  that  when  that  agreement — now  called  Caudine 
Forks  by  my  learned  colleague — was  entered  into,  the  company,  accord- 
ing to  the  statement  of  Maître  Dacraigne,  page  14  of  liis  opinion, 
found  herself  in  this  position  : 

The  earthquake  of  April  (1894)  left  the  company  as  unexpectedly  as  unfortunately  with- 
out resource  of  any  kind.  In  order  to  attend  to  urgent  repairs  and  work  and  to  procure 
funds,  the  company  was  compelled  to  make  a  first  issue  of  5ÜO-franc  bonds,  drawing  an 
interest  of  6  per  cent. 


410       FRENCH    COMPANY    OF    VENKZITKLAN    RAILROADS    CA8E. 

On  page  12  of  the  same  opinion  the  following  statement  is  found: 

The  company  issued  in  this  way  4,000,  the  largest  portion  of  which  was  held  bv  tK'  Dyle 
and  Bacalan  and  the  Tives-Tjille  companies.  It  was  agreed  with  these  two  companies  that 
the  payments  made  by  the  state  were  to  be  employed  in  preference  for  the  payment  of  said 
bonds.  It  was  therefore  in  execution  of  this  covenant  entered  into  by  the  company  because 
of  the  failure  of  the  state  to  keep  its  part  of  the  agreement  that  in  the  month  of  June,  1898, 
the  Venezuelan  Railroad  Company  tran.sferred  to  the  other  two  companies  the  Venezuelan 
revenues  received. 

About  the  30th  of  June,  1898,  the  general  a.ssembly  of  stockholders  ratified  such  agree- 
ment, which  was  confirmed  by  the  bondholders,  and  after  payment  of  all  accounts  there 
remained  out  of  this  transaction  at  the  disposal  of  the  railroad  company  a  balance  of 
200,000  francs  as  working  capital. 

If,  notwithstanding  the  fact  tliat  the  Venezuelan  Government  had 
delivered  to  the  compan}^  5  per  cent  bonds  of  the  1896  loan  to  the 
amount  of  4,450,000  bolivars,  thus  enabling  the  company  to  redeem 
its  debt,  amounting  to  2,000,000  francs,  in  stock  and  bonds,  the  largest 
portion  of  which  was  held  by  the  Dyle  and  Bacalan  and  the  Tives- 
Lille  Companies,  still  lea\àng  the  company  a  working  capital  of 
200,000  francs  if,  I  say,  notwithstanding  that  fact,  the  company  was 
unable  to  meet  the  ruinous  future  events,  it  is  plain  that  the  failure  of 
the  company  to  continue  repairs  and  to  defray  operating  expenses 
would  have  taken  place  sooner. 

This  clearly  shows  that  the  company,  in  view  of  its  critical  financial 
position  in  Paris,  its  credit  being  Completel}^  exhausted,  found  it 
advantageous  to  its  interest  and  to  the  continuation  of  the  under- 
taking to  accept  the  propositions  made  by  the  Venezuelan  Govern- 
ment for  the  redemption  of  the  guaranty  and  the  payment  of  the 
amounts  due,  whicli  the  company  agreed  to  reduce  to  the  amount  of 
1,950,000  bolivars,  fixing  the  redemption  of  the  future  guaranty  at 
2,500,000  bolivars. 

In  this  agreement  made  by  the  French  Company  because  the  com- 
pany found  it  to  be  acceptable  and  advantageous,  Mr.  Dacraigne  finds 
grounds  to  hold  "without  possible  discussion"  that  the  French  Com- 
pany is  authorized  to  ask  the  rescission  of  the  contract  and  the  reim- 
bursement of  all  the  expenses  that  such  action  entails,  plus  the  corre- 
sponding damages  and  respective  interest.  Thus,  he  says,  is  justified 
the  claim  for  the  18  millions  expended  and  the  interest  as  above 
specified. 

Thus  the  Venezuelan  Government,  because  of  the  fact  that  it  has 
canceled  its  ol^ligations  up  to  the  date  of  (he  convention,  after  having 
paid  a  heavy  sum  in  settlement  of  a  guaranty  which  could  remain 
undue  and  without  foundation,  as  the  company  was  unable  to  con- 
tinue operations  })ecause  of  the  ruinous  future  events,  must  pay  again 
and  settle,  besides,  damages  and  interests  because  such  had  been  jiaid. 
The  Venezuelan  commissioner  has  been  unable  to  find  in  the  legisla- 
tion of  any  country,  nor  in  the  natural  law,  anything  that  may  lead 


ADDITIONAL    OPINION    OF    VENEZUELAN    COMMISSIONER.       411 

to  the  acceptance  and  holding  of  such  kind  of  Habihties  as  established 
either  by  private  or  international  law. 

Tl:(^  French  commissioner  holds  that  the  Venezuelan  Government, 
as  stated  in  the  opinion,  woiüd  enter  into  possession  of  everything  the 
company  possesses  in  Venezuela,  and  details  such  possessions  as  "the 
line,  the  buildings,  the  rolling  stock,  the  maritime  property,  in  such 
condition  as  they  are  found  now,"  and  fixes  the  amount  of  the  indem- 
nity such  conveyance  would  represent  at  18,483,000  bolivars. 

I  have  also  been  vmable  to  find  among  the  documents  and  papers  in 
the  case  reasons  justifying  sudi  forcible  transfer,  nor  any  advances 
whatever  on  the  part  of  the  Venezuelan  Government  which  might 
lead  to  the  supposition  that  the  Government  is  inclined  to  accept  such 
transfer  of  the  property  in  question  in  such  condition  as  it  is  found 
now  for  the  amount  demanded  by  the  claimant  company,  which  the 
French  commissioner  grants.  Such  transactions  are  always  con- 
trolled b}'  the  convenience  of  both  contracting  parties,  are  agreed  upon 
freely  and  spontaneously,  and  can  not  be  the  object  of  a  decision  of 
this  commission. 

I  think  it  my  dut}"  to  quote,  in  this  connection,  the  following  state- 
ment of  the  French  commissioner  as  having  special  significance: 

The  company,  through  its  legal  advocate,  claims,  besides  the  adjudication  of  interest  at 
the  rate  of  7  per  cent,  which,  in  my  opinion,  does  not  harmonize  with  the  manner  in  which 
this  indemnification  may  be  estimated.  We  are  now  dealing  with  a  simple  exchange  of 
lvalues  without  any  consideration  of  profits  or  interest.  If  the  interest  were  to  be  esti- 
mated, would  it  not  be  also  necessary  to  take  into  account,  for  instance,  the  products  of  the 
exploitation  of  the  line  while  it  was  in  operation  and  deduct  them  from  the  amount  of  the 
indenmity^ 

The  Paris  protocol  by  wliich  this  tribunal  has  been  vested  with 
arbitration  powers  by  special  commission  intrusted  to  the  legal  repre- 
rentatives  of  France  and  Venezuela  has  narrowed  the  scope  of  said 
commission  to  a  single  and  solitary  point — that  of  examining  and  decid- 
ing upon  the  claims  for  indemnification  entered  by  French  citizens 
for  acts  which  have  taken  place  at  a  certain  time.  Now,  to  grant  indem- 
nities^br  acts  which  have  not  actually  taken  place  because  of  the  exchange 
of  values  which  were  to  be  made  by  virtue  of  a  sentence  of  the  com- 
mission, would  be  to  substantialh'  alter  the  terms  of  the  protocol  bind- 
ing the  contracting  parties  and  to  render  the  award  of  the  commission 
nugatory,  as  it  would  then  involve  a  violation  of  the  pact  which  con- 
trols the  commission. 

The  pact,  or,  in  other  words,  the  free  agreement  of  the  parties,  by  which  they  agree  to  sub- 
mit the  examination  and  settlement  of  differences  arising  among  them  to  an  impartial  third 
party,  controls  the  whole  arbitration  proceedings.  The  pact  previously  agreed  to  by  the 
contracting  parties  is,  in  fact,  the  essential  condition  for  the  institution  of  arbitration  pro- 
ceedings— is  the  starting  point,  the  rule  to  be  followed  by  the  arbitrators.  The  nature  of 
things  and  common  sense  thus  direct.  The  arbitrator  or  arbitrators  can  not  constitute 
themselves  as  judges  of  a  question.     The  limit  of  the  mission   intrusted  to  them  grows 


412        FRENCH    CnMl'ANY    <>K    VKNKZrKLAX    RAILROADS    CASE. 

exclusively  out  of  the  will  of  the  parties;  having  been  chosen  to  apply  the  law  to  a  question, 
theij  themselves  can  not  create  the  rule  of  law  and  apply  it.  The  jyacf  determines  and  circiim- 
ftcribes  the  object  of  the  dispute,  *  *  *.  (Pradior-Fod(?r(?,  Droit  International  Public, 
vol.  6,  section  2612.) 

The  pact  as  laid  down  by  the  French  court  of  cassation  in  its  judg- 
ment of  January  IS,  1842  (Mauny  case — see  Dalloz,  Juri.s])rudence 
Générale,  Vol.  IV,  Arbitrage,  No.  471,  note) — 

is  the  only  essential  thing  to  be  consulted  to  decide  whether  the  arbitrators  have  pa.ssed 
judgment  without  authority  or  jurisdiction. 

It  is  true  that  the  claim  of  the  French  Company  of  Venezuelan  rail- 
roads embodies  the  sum  of  18,430,000  bolivars  for  indemnities 
demanded  from  the  Venezuelan  Government,  and  this  conmiission  is 
vested  with  full  authority  to  determine  whether  the  amount  of  the 
indemnities  which  Venezuela  is  to  ])ay  for  such  acts  as  may  have 
directty  caused  actual  damages  to  the  company's  property  or  for 
actual  services  such  companj'  may  have  ren(!ered  the  Government  of 
Venezuela,  such  damages  and  services  to  be  fully  established  and 
affecting  Venezuela's  liabilities.  Any  and  all  acts  partaking  of  either 
character,  be  it  damages  or  sermces  rendered  which  the  Government  of 
Venezuela  should  indemnify,  falls  under  the  action  of  this  commission. 

It  was  by  reason  of  this  application  of  the  terms  of  the  protocol, 
which  I  consider  the  right  application,  that  in  my  opinion  rem'.ered  in 
Caracas  on  August  28,  1903,  I  differed  from  my  learned  colleague  and 
explained  the  acts  which  in  my  judgment,  and  in  conformity  with  the 
proofs  furnished  by  the  papers  in  the  case  the  AVnezuelan  Government 
might  incur  a  liability  for,  concluding  my  opinion  with  the  following 
concrete  statement  :  - 

I  am  therefore  of  the  opinion  that  the  companj'  is  entitled  to  an  indemniiication  of  ten 
thousand  bolivars  (10,000  bolivars)  and  interest  at  the  rate  of  3  per  cent  from  October  12, 
1899,  which  the  Government  of  Venezuela  will  pay/rr  wear  and  tear  of  the  steamer  Santa 
Bárbara  while  .she  was  in  the  Government's  .service;  that  the  company  should  reserve  her 
action  to  ol)tain  payment  of  the  bill  (ov freight,  tiansporlation  (f  troops,  and  use  of  two  of  her 
.steamers  by  the  authorities  of  the  State  of  Zulia,  duly  made  out  and  vouched  for,  and  that 
according  to  the  balance  sheet  of  December,  1899,  amounted  to  that  date  to  the  sum  of 
203, .529.70  francs,  and  interest  from  their  respective  datesof  origin,  and  that  theOovernment 
of  Venezuela  should  also  re-^erve  the  actions  and  rights  that  might  concern  it,  becau.se  of 
the  suspension  of  traffic,  abandonment  of  operation,  and  consequently  damages  suffered  by 
the  line  because  of  failure  to  maintain  and  preserve  it;  and  that  as  far  as  the  other  points  art» 
concerned  the  claim  .should  be  rejected  as  groundless.  (Comisic^n  Mixta  Venezolana- 
Francesa.  Protocolo  de  19  de  Febrero,  1902.  Dictámenes  del  Arbitro  Venezolano.  Edición 
Oficial,  1903,  p.  200.  ) 

During  the  oral  ])roceedings  hail  at  the  sitting  of  August  28,  1903, 
(ibid.,  p.  211),  the  grounds  for  my  decision  were  sumnuirized  as  follows: 

The  commissioner  for  Venezuela  considering  in  opposition — 

That  the  actual  reasons  of  the  suspension  of  opeiation  of  the  line  by  the  company  are  of  an 
economic  character,  as  the  company  was  comijelled  to  take  such  steps  because  of  the  lack  of 
traille  due  to  the  state  of  revolt  of  the  eounlry  and  because  of  the  impo.ssibility  in  which  it 
(the  company)  was  placed  by  reason  of  its  bad  financial  situation  of  obtaining  the  ncceaeary 


ADDITIONAL    OPINION    OF    VENEZTTî:LAN    COMMISSIONER.        413 

funds  to  repair  the  damages  caused  by  the  weather  toa  line  built  under  unfavoralile  condi- 
tions; 

That  tlio  Venezuelan  Government  could  iwt  he  responmhle  either  for  the  davim/es  sull'ered  by 
the  working  materials  because  of  voluntary  abandonment  nor  yet  of  such  danKujes  as  the 
company  may  have  sufTered  on  account  of  (he  state  of  revolution  in  (he  country  or  t)V  an 
accident  of  war; 

That  the  agreement  entered  into  l)y  the  company  and  the  Venezuelan  (lovernment,  in 
regard  to  the  guaranty  stipulated  in  the  contract,  has  been  duly  and  fully  executed  and  that 
the  company  has  received  the  sums  residting  from  the  sale  of  the  bonds  whicli  in  compliance 
with  the  terms  of  said  agreement  were  delivered  to  the  company: 

That  the  Government  of  Venezuela  has  never  refused  to  pay  the  company  the  \  aluc  of  the 
requisitioihs  (seizures)  and  the  damages  resultiwj  therefrom  to  the  material  and  that  tiie  ina- 
bility of  the  Government  to  make  such  payments  because  of  the  exhausted  condition  of  the 
public  funds  during  the  civil  war  only  makes  the  Government  liable  for  the  jmyment  of 
unpaid  interests; 

The  conmiissioner  is  therefore  of  the  opinion  that  the  claim  of  the  company  lacks  proper 
grounds  and  onlj^  acknowledges  to  the  company  the  right  to  an  indenuiity  for  10,000 
bolivars  for  the  wear  and  tear  suffered  by  the  steamer  Santa  Bárbara  while  she  was  in  the 
Government's  service  and  reserves  to  the  company  the  right  to  claim  from  the  Venezuelan 
Government  by  filing  the  proper  and  necessary  vouchers  the  amounts  due  by  requisitions 
(seizures)  and  the  corresponding  interests; 

Doctor  Paid  reserves  for  the  Venezuelan  Government  all  its  rights  of  action  against  the 
company  because  of  the  abandonment  of  the  operation  of  the  line. 

The  French  Company  of  ^^enezllelan  Railroads  under  date  Septem- 
ber 28,  1904 — that  is  to  say,  one  year  after  the  session  of  August  28, 
1903,  when  the  commission  closed  its  labors  in  Caracas — submitted  all 
the  documents  in  support  of  the  requisitions  or  services  rendered  by 
the  railways  and  the  ships  of  the  company  to  the  Government  of  the 
State  of  Zulia  up  to  September  30,  1899.  I  have  examined  with  due 
care  and  attention  the  bills  and  annexed  vouchers  and  found  correct 
the  balance  due  to  the  company  by  the  government  of  Zulia,  accord- 
ing to  a  communication  addressed  by  the  manager  to  the  President  of 
the  State  on  the  date  aforesaid  and  found  under  No.  3  ''Dossier 
Réquisitions — Jacket  No.  11."  According  to  said  communication 
and  vouchers  submitted  the  balance  due  amounts  to  193,135.95 
bolivars. 

In  a  communication  addressed  under  date  of  January  18,  1900,  by 
the  board  of  managers  of  the  French  company  to  his  excellency  the 
minister  of  foreign  affairs  in  Paris  a  copy  of  which  is  found  m  Exliibit  3, 
document  5,  the  following  statement  is  made: 

We  take  the  liberty  to  send  you  herewith  a  copy  of  the  report  of  our  chief  manager,  the 
engineer,  Gustave  Simon,  relating  to  his  mission,  which  said  gentleman  delivered  to  us  upon 
his  arrival  in  France. 

Every  day  that  passes  since  we  were  compelled  and  forced  by  the  re\olutionary  events  to 
suspend  our  operations  in  Venezuela,  since  October  12,  1899,  will  render  more  difiicult  and 
onerous  the  possibility  of  our  resuming  operations. 

The  failure  to  maintain  a  road  and,  above  all,  a  railroad  leads  to  its  rapid  desti-uction, 
especially  in  a  tropical  country  where  vegetation  is  powerful  and  of  almost  instantaneous 
growth. 

*  *  *  -We  c.stimate  in  .30(),(KJ(J  francs  the  mininunn  cash  amount  necessary  to  renew, 
before  the  end  of  April  next,  the  operation  and  service  of  our  busiues.s. 


414       FRENCH    COMPANY    OF    VENEZUELAN    RAILROADS    CASE. 

Now  the  different  debts  of  the  national  Government,  as  well  as  those  of  the  provincial 
governments,  due  to  our  company  may  be  resumed  as  follows: 

(a)  The  amount  of  300,000  francs,  in  round  numliers,  representing  reimbursement  oftrans- 
portation  expenses  and  requisitûm.^i  made  by  the  account  of  the  authorities. 

The  itemized  accounts  have  been  furnished  to  the  authorities  according  to  fonns  and  decrees. 
The  largest  portion  of  these  bills  have  received  proper  official  approval. 

(b)  The  amount  of  2.50,0(X)  francs,  our  minimum  estimate  of  the  indemnijication  due  by 
the  Government  of  Venezuela  by  substantial  repairs  and  damages  caused  because  of  its  acts 
to  the  whole  of  our  property  during  the  last  revolution.' 

(c)  The  amount  of  1,050,000  francs  which,  at  the  rate  of  105,000  francs  per  month,  rep- 
resents the  amount  of  the  indemnification  which  the  Government  of  Venezuela  owes  us  because 
of  suppression  by  its  act  of  our  traffic  during  the  ten  months  elap.sed  Ijetween  July,  1899,  and 
May,  1900. 

Wc  have  taken  as  a  basis  for  this  estimate  of  the  indemnification  the  amount  of  the 
guaranty  of  1 ,260,000  francs  which  had  been  fixed  and  acknowledged  to  our  company  b}'  the 
concession-contract,  duly  approved  and  ratified  by  the  Venezuelan  Congress  and  the  Presi- 
dent of  the  Republic. 

Let  US  examine  now,  one  by  one,  these  charges  for  mdeinnity 
requested  from  the  Government  of  Venezuela  under  date  of  January 
18,  1900 — that  is  to  say,  three  months  after  the  abandonment  or  sus- 
pension of  operations  on  the  part  of  the  board  of  managers,  on  the  12th 
day  of  October,  1899. 

The  first  item — that  is,  the  amount  of  300,000  francs  in  round  num- 
bers, as  reimbursement  for  transportation  and  requisitions  by  the 
authorities — exceeds  in  the  amount  of  106,864.05  bohvars  the  sum  of 
the  balance  sheet  submitted  by  the  same  board  of  managers  to  the  au- 
thorities on  September  30,  1899,  or  twelve  days  before  the  suspension 
of  operations  and  the  delivery  of  the  rolling  stock,  offices,  implements, 
and  other  property  of  the  company  to  the  consular  agent  of  France 
in  Maracaibo,  Mr.  A.  I.  d'Empaire.  The  claimant  has  produced  said 
bills  and  vouchers  before  the  commission.  In  this  regard,  the  Gov- 
ernment of  Venezuela  is  the  debtor  of  the  French  Company  of  Vene- 
zuelan Railroads,  as  per  bills  and  vouchers,  to  the  amount  of  193,135.95 
bolivars,  and  interest  at  the  rate  of  3  per  cent,  as  established  by  the 
company,  from  the  date  when  it  is  showTi  such  transportation  and 
requisitions  took  effect  in  compliance  with  the  orders  of  the  local 
authorities  of  the  State  of  Zulia. 

The  dates  and  respective  balances  are  the  following,  as  sho^\^l  by  the 
examination  I  have  made  of  the  bills  in  the  record  of  the  case: 

Bolivars. 
Balance  approved  by  the  legislature  of  the  State  of  Zulia,  February  27,  1894 . .       2,  994.  85 
Balance  approved  by  the  legislature  of  the  State  of  Zulia,  January  23,  1895. .       6,  434.  60 

Invoice  as  per  statement  up  to  December  31 ,  1897 15,  443.  60 

Invoice,  etc.,  to  May  30,  1898 3,  886.  00 

Invoice,  etc.,  to  October  ."iO,  1898 34,  618.  90 

Invoice,  etc.,  to  March  3,  1898 6  532.  00 

Invoice,  etc.,  to  April  (i,  1899 9,  047.  00 

Invoice,  etc.,  to  Se|)lemlx'r  :«),  189Í) 114,  679.  00 

T.Jtai 193,  635. 95 


ADDITIONAL    OPINION    OF    VENEZUELAN    COMMISSIONER.        415 

An  estimate  of  the  interest  on  the  several  balances  from  their  respec- 
tive dates  until  that  when  the  company  may  probably  come  into  pos- 
session of  the  funds  by  virtue  of  the  execution  of  the  sentence  wh^ch 
may  be  finally  passed,  a  lapse  of  time  which  I  believe  to  be  reasonably 
witliin  three  months,  takin<>;  into  consideration  any  inevitable  delay, 
will  show  that  the  company  in  this  regard  is  entitled  to  the  sum  of 
36,060  bolivars. 

Between  the  amount  of  193,135.95  bolivars,  which  is  established  by 
the  company's  statements,  and  that  of  203,529.70  bolivars,  balance  in 
the  company's  statement  of  December  31,  1899,  as  due  by  the  Vene- 
zuelan Government  at  that  time,  as  shown  in  the  report  of  the  board  of 
managers  to  the  stockholders  in  the  company,  and  to  which  I  have 
made  reference  at  the  conclusion  of  my  opinion  of  August  28,  1903, 
there  is  a  difference  of  10,393.75  bolivars,  to  wliich  I  find  no  other 
explanation  in  its  support  than  that  it  represents  the  price  the  com- 
pany has  charged  the  Government  of  Venezuela  for  the  service  of  the 
steamer  Santa  Barbara  during  the  days  intervening  between  Septem- 
ber 30,  1899,  and  the  end  of  October  of  the  same  year,  when  it  appears 
the  steamer  was  returned  to  the  company  after  having  taken  to  the 
island  of  Curaçao  Doctor  Andrade,  the  President  of  the  State,  after 
the  so-called  ''Liberal-Restauradora"  revolution.  Such  amount,  even 
if  it  does  not  appear  in  a  specified  form,  f.s  it  should  do,  I  deem  to  be  a 
fair  compensation  for  the  services  rendered  by  the  steamer  Santa 
Bárbara  to  the  local  authorities  during  the  month  of  October,  as, 
according  to  documents  in  the  case,  the  company  had  suspended 
since  the  12th  of  the  same  month  all  operations  in  its  railroad  and 
steamer  service,  so  that  there  were  no  expenses  for  maintenance  of 
the  service. 

On  the  aforesaid  amount,  which  I  recognize  as  also  due  by  the  Gov- 
ernment of  Venezuela,  interest  at  the  rate  of  3  per  cent  should  be 
added  from  October  30,  1899,  to  the  date  of  the  execution  of  the  sen- 
tence as  aforesaid,  so  that  the  amount  of  the  indemnity  increases  to 
the  sum  of  1 ,767  bolivars. 

So  that  the  principal  and  interests  on  this  amount,  as  shown,  amount 
to  203,529.70  bolivars  as  principal  and  37,827  bolivars  as  interest, 
or,  in  all,  241,357.70  bolivars. 

I  do  not  think  that  the  indemnification  wliich  this  commission  may 
award  the  company  should  exceed  such  sum  for  delay  in  payment  of 
services  rendered  the  authorities  of  the  State  of  Zulia  at  different  times, 
because  such  services  as  are  represented  by  transportation  of  employees 
and  troops,  both  by  land  and  water,  during  the  time  intervening  be- 
tween 1893  and  March,  1899,  the  correspondence  and  other  papers 
submitted  in  the  case  show  they  were  a  portion  of  the  active  and 
frequent  business  transactions  of  the  company  carried  on  with  the 
local  authorities,  originating  debits  and  credits  in  account  current. 


416       FRENCH    COMPANY    OF    VENEZUELAN    RAILROADS    CASE. 

There  is  no  written  or  documentary  evidence  showang  that  the  com- 
pany did  ever  j)ress  the  puyment  of  the  periodical  bahinces  of  the 
acpount  by  means  of  jiny  of  the  measures  wliich  the  law  places  at  the 
disposal  of  the  creditor  to  olitain  or  enforce  the  payment  of  what  is  due 
him.  Under  such  conditions  there  was  no  denial  of  justice  nor  has 
such  claim  been  advanced.  On  the  contrary,  from  the  correspondence 
it  a])pears  that  such  activity  in  the  account  current  of  the  Government 
with  the  company  dining  the  six  years  mentioned  was  of  such  imjiort- 
ance  for  the  latter  that  it  could  well  afford,  as  it  happens  at  times  in 
tliis  kind  of  business  transactions,  to  take  into  consideration  certain 
circumstances  wliich  only  the  company  was  cap{;ble  of  appreciating, 
in  order  not  to  institute  \egcA  proceedings  to  compel  such  payment,  but 
willingly  to  wait  the  paj^ment  of  such  sums  as  fell  due. 

It  must  he  stated  that  the  delà}'  in  the  payment  of  the  balances 
on  the  part  of  the  local  authorities  of  the  State  of  Zulia  only  repre- 
sents in  a  period  of  over  six  years  the  amount  of  78,450.95  bolivars, 
out  of  wliich  sum  50,197.90  bolivars  belong  to  the  six  months  elapsed 
from  October,  1898,  to  April,  1899,  preceding  the  revolutionary  events 
of  May  of  the  latter  y?ar.  It  is  also  worthy  of  notice  that  the  com- 
pany has  not  shown  the  total  movement  of  its  account  current  with 
the  government  of  the  State  of  Zulia  from  the  year  1893  up  to  the 
month  of  April,  1899,  when  the  government  of  the  State  appears  to 
be  the  company's  debtor  to  the  amount  of  78,456.95  bolivars.  The 
company  has  only  submitted  to  this  commission  the  balances  due 
at  certain  dates,  which  do  not  furnish  suilicient  data  to  find  out  the 
amount  represented  l)y  the  total  volume  of  the  business  transactions 
during  the  six  years  in  question  to  indicate  whether  the  government 
of  the  State  of  Zulia  is  as  remiss  in  the  ])ayment  of  its  obligations 
as  represented. 

The  same  documents  and  correspondence,  which  1  have  had  before 
me,  show,  as  has  been  established,  that  the  larger  portion  of  the  total 
balance  for  freights  and  re(|uisitions  due  by  the  government  of  the 
State  of  Zulia  on  September  30,  1899,  arises  from  services  rendered 
by  the  railways  and  the  steamers  of  the  company  to  the  authorities 
of  the  State  of  Zulia  for  the  months  ehipsed  from  May  of  the  same 
year  when  the  revolution  ''  Libertadora"  broke  out  in  the  Andes 
until  said  authorities  were  deprived  of  their  power,  because  of  the 
triumph  of  the  revolutionary  party.  It  was  during  these  months 
that  traliic  was  suspended  on  the  railroad,  because  of  the  interrupted 
communications  with  the  interior  and  the  complete  cessation  of  all 
transportaticiii  of  the  products,  whicli  made  the  normal  carrying  trade 
of  the  line  in  the  ordinary  course  of  business  transactions.  The  man- 
agers-of  the  line  found  themselves  in  an  embarrassing  ])<)sition  to 
meet  the  indis])(Misable  exjxMises  for  ti»e  want  of  the  income  pnxhiced 
by  such  transportation  opei'iit ions,  and   it  was  then  that  the  goNcrn- 


ADDITIONAL    OPINION    OF    VENEZUELAN    COMMISSIONER.       417 

ment  of  the  State  of  Zulia,  finding  itself  under  the  necessity  of  defend- 
ing the  duly  constituted  authorities  and  to  restore  public  order,  made 
use,  as  the  government  was  entitled  to  do  and  the  company  bound 
to  allow  by  the  terms  of  the  concession-contract  and  the  imperious 
military  necessity,  of  the  means  of  transportation  over  land  and  water 
that  the  company  had  at  a  standstill  at  that  moment  because  of  the 
lack  of  mercantile  traihc. 

Thus  the  debt  created  by  the  authorities  of  the  State  of  Zulia  in 
favor  of  the  company  under  such  circumstances  represents  the  sole 
industrial  profits  the  company  could  have  obtained  out  of  its  land 
and  water  transportation  facilities,  wliile  the  use  to  which  said  author- 
ities placed  such  means  of  transportation  afforded  the  only  possible 
means  to  protect  and  save  such  property  either  from  the  injurious 
action  of  a  protracted  period  of  idleness  or  from  the  risk  of  being 
seized  and  destroyed  by  the  revolutionary  party  in  order  to  prevent 
that  the  Government  they  were  opposing  might  make  use  of  it. 

I  do  not  find  that  the  impossibility  said  government  was  in  of 
satisfv'ing  the  pressing  request  for  payment  wliich  the  agent  for  the 
company  in  Maracaibo  began  to  urge  precisely  at  the  very  moment 
said  authorities  were,  for  the  same  reasons  alleged  by  the  company, 
in  want  of  funds  and  when  the  Government  was  compelled  to  spend 
whatever  revenues  might  be  collected  to  defray  the  expensive  opera- 
tions of  war — I  do  not  find,  I  say,  that  such  impossibility  can  be  made 
a  cause  to  justify  the  claim  of  liability  which  the  company  pretends 
affects  the  national  Government  and  settlement  of  which  by  an 
indemnity  amounting  to  millions  of  bolivars  has  been  demanded. 
If  the  managing  board  of  the  French  Company  of  Venezuelan  Rail- 
roads found  itself  compelled  to  suspend  operations  because  of  the 
lack  of  funds,  and  neither  the  company  nor  the  board  of  directors 
can  be  made  responsible  for  such  sta^e  of  affairs,  as  it  is  due,  the 
company  avers,  to  a  case  of  force  majeure,  why  is  the  national  Gov- 
ernment of  Venezuela  to  be  made  responsible  because  the  local  author- 
ities of  the  State  of  Zulia  were  in  the  impossibility  to  make  disburse- 
ments to  the  company  in  payment  of  its  debts  when  such  authorities 
were  also  under  the  force  majeure  of  impossibility  on  account  of  the 
war? 

In  an  interview  had  in  Caracas  between  the  manager,  Mr.  Simon, 
and  the  minister  of  finance,  Mr.  Olivarria,  in  September  (16),  1899, 
when  for  the  first  time  a  direct  request  for  a  payment  on  account  of 
the  sum  due  the  company  by  the  sectional  government  of  Zulia  was 
made  to  the  national  Government,  the  aforesaid  minister  of  finance 
gave  as  a  reason  for  not  making  the  payment  then  requested  lack  of 
funds  and  impossibility  to  promise  to  make  such  payment  in  the  near 
future.  At  the  time  of  this  interview  the  national  Government  of 
Venezuela,  represented  by  the  president  general  Ignacio  Andrade, 
S.  Doc.  533,  59-1 27 


418       FRENCH    COMPANY    OF    VENEZUELAN    RAILKOADS    CASE. 

was  reduced  to  the  capital  of  the  Repubhc  after  the  armed  conflict 
of  Tocuyito,  September  12,  when  the  Government  forces  were  defeated 
bv  the  army  under  the  command  of  Gen.  Cipriano  Castro,  the  present 
provisional  President  of  \'enezuela.  General  Andrade  and  those  who 
composed  the  Federal  executive  could  not  at  that  moment  be  in  a 
position  to  satisfy-  other  needs  than  those  the  precarious  conditions 
of  the  disorganized  Government  exacted  as  of  vital  importance.  A 
month  after,  which  was  spent  in  gathering  new  troops  and  directing 
military  operations,  to  which  effect  new  war  contributions  were  levied 
and  requisitions  issued  on  the  inhabitants  of  Caracas  for  horses,  mules, 
and  provisions  for  the  army,  General  Andrade  found  himself  in  the 
impossibility  of  continuing  the  struggle  and  abandoned  the  capital, 
accompanied  by  some  ofhcers  and  soldiers,  on  October  19.  From 
these  facts,  which  are  in  perfect  accord  with  liistoric  truth,  by  the 
simple  application  of  common  sense  free  from  any  passion  or  preju- 
dice whatever,  it  is  concluded  that  there  has  not  existed  on  the  side 
either  of  the  sectional  government  or  of  the  national  authorities  any 
deliberate  puq^ose  of  doing  any  injury  to  the  prosperity  and  the 
business  of  the  French  Company  of  Venezuelan  Railroads  by  delaying 
without  any  justifiable  cause  the  payment  of  the  amounts  due. 

The  liability  wliich  by  all  possible  law  and  by  all  principles  univer- 
sally established  affects  the  debtor  who  does  not  pay  his  obligations  in 
due  time  is  solely  that  of  paying  interest  to  his  creditor  for  the  time 
of  the  delay  at  the  rate  agreed  upon  and,  in  the  absence  of  an  agree- 
ment on  this  point,  at  the  legal  rate. 

The  provisions  of  the  Venezuelan  Civil  Code,  which  in  tliis  matter 
agree  with  those  of  the  French  and  Italian  Civil  Codes  and  with  the 
civil  law  of  all  countries,  establish  that  there  exist  obligations  with 
penal  clause  when  the  debtor,  to  secure  the  fulfillment  of  an  obligation 
agrees  to  give  or  to  do  something  in  case  of  failure  or  delay  in  the 
execution  of  such  obligation,  and  that  the  penal  clause  is  the  compen- 
sation for  damages  growing  out  of  the  failure  tt  ñdfill  the  principal 
obligation.     (Articles  1 175  and  1 178  of  the  Venezuelan  Code  of  1896).  » 

When  the  government  of  the  State  of  Zulia  made  a  compact  with 
the  French  Company  of  Venezuelan  Railroads  for  the  service  of  trans- 
portation of  troops,  ammunition,  etc.,  and  the  requisitions  which 
created  the  Government's  debt,  no  penal  clause  was  stipulated  to 
secure  the  fulfillment  of  the  contracted  obligation,  nor  did  the  Gov- 


«Art.  1175.  Hay  t)ljligucionc\s  con  cláusula  penal  cuando  cl  deudor,  para  asc>;urar  cl 
cumplimiento  de  una  obligación,  se  compromete  á  dar  ó  hacer  alguna  cosa  para  el  caso  de 
inejecución  ó  retardo  en  el  cumpl¡mi(  nto  de  la  obligación. 

Art.  1178.  La  cláusula  penal  es  la  compensación  de  los  daflos  y  perjucios  causados  por 
la  inejecución  de  la  obligación  principal. 

VA  acreedt)f  no  puede  reclamar  á  un  luismo  tiempo  la  cosa  principal  y  la  pena,  si  no  la 
hubiere  estipulado  por  el  simple  retardo. 


ADDITIONAL    OPINION    OF    VENEZUELAN    COMMISSIONER.       419 

eminent  become  bound  to  pay  damages  in  case  of  delay  in  the  pay- 
ment different  from  those  the  law  in  i.ll  countries  grant  the  creditor 
against  the  debtor  of  (m  amount  of  money — i.  e.,  interest  either  in  con- 
formity with  the  contract  or  with  the  law. 

The  following  provisions  of  the  Venezuelan  Civil  Code  mentioned, 
which  agree  with  the  identical  prescriptions  in  the  French  Civil 
Code,  from  which  they  were  adopted,  are  j^ertinent  to  the  case: 

AiiT.  lini.  The  debtor  is  not  under  obligation  to  pay  damages  when  ¡is  tlie  consequence 
oí  fortuitous  events  or  force  majeurehe  has  failed  to  give  or  to  perform  that  wliicli  lie  is  houiul 
to  do,  or  has  performed  that  wiiich  was  forl)iddoii. 

Art.  1192.  Damages  are  generally  due  to  the  creditor  for  tlie  loss  sustained  or  the  benefits 
which  he  has  been  deprived  of,  according  to  the  provisos  and  exceptions  hereunder. 

Art.  1193.  The  debtor  is  not  liable  except  for  such  damages  as  liare  been  foreseen  or  that 
could  have  been  foreseen  the  time  the  contract  was  made,  when  the  failure  to  fulfill  the  obliga- 
tion is  not  due  to  fraud  or  deceit  (dolo). 

Akt.  1194.  Even  in  cases  where  the  failure  to  execute  an  obligation  may  he  the  result  of 
fraud  or  deceit  on  the  part  of  the  debtor  the  damages  for  the  loss  suffered  by  the  creditor  or 
from  the  loss  of  profits  of  which  he  might  have  been  deprived,  can  not  extend  beyond  tlie 
immediate  and  direct  consequences  of  the  failure  to  fulfill  the  obligation. 

Art.  1196.  When  in  the  obligations /or  a  certain  sum,  of  money  there  exists  no  special 
agreement,  such  damages  as  are  the  result  of  delay  in  the  execution  are  indemnified  by  the  pay- 
ment of  interest  at  the  legal  rate,  except  when  otherwise  specified.  Such  damages  are  due 
from  t  he  day  of  delay,  the  creditor  not  being  under  obligation  to  establish  any  loss  b}^  proof  .a 

These  prescriptions  which  are  based  on  iniiversal  rules  of  civil  and 
commercial  law  of  all  civilized  countries  are  the  only  ones  applicable 
to  tins  case.  And  it  is  based  upon  such  rules  that  I  have  held  and  do 
still  hold  that  the  Venezuelan  Government  is  not  liable  to  the  French 
Company  of  Venezuelan  Railroads  for  any  other  damages  for  failure 
to  pay  the  amounts  due  on  the  contracts  for  services  rendered,  except 
the  payment  of  the  sum  of  money  due  for  such  services  and  the  corre- 
sponding interest  at  the  legal  rate.  To  hold  otherwise  would  be  to 
apply  to  Venezuela  a  penalt}'  wliich  has  not  been  established  b^"  any 
codes  of  any  of  the  nations  existing  under  international  law.  I, 
therefore,  limit  the  liability  of  the  Government  of  Venezuela  on  this 


«Art.  1191.  El  deudor  no  está  obligado  á  pagar  daños  ó  perjuicios  cuando  es  á  con- 
secuencia de  un  caso  fortuito  ó  de  fuerza  mayor  que  ha  dejado  de  dar  6  de  hacer  aquello 
á  que  estaba  obligado  ó  que  lia  ejecutado  lo  que  le  estaba  prohibido. 

Art.  1192.  Los  daños  y  perjuicios  son  debidos  generalmente  al  aen-edor,  por  la  pérdida 
que  ha  sufrido  y  por  la  utilidad  de  que  ha  sido  privado,  sa'vo  las  modificaciones  y 
excepciones  establecidas  á  continuación. 

Art.  1193.  El  deudor  no  queda  obligado  sino  por  los  daños  y  perjuicios  que  han  sido 
previstos  ó  que  han  podido  preverse  al  tiempo  de  la  celebración  del  contrato,  cuando  la 
falta  de  cumplimiento  de  la  obligación  no  proviene  de  dolo. 

Art.  1.194.  Aunque  la  falta  de  cumplimiento  de  la  obligación  resulte  de  dolo  del  deudor 
los  daños  y  perjuicios  relativos  á  la  pérdida  sufrida  por  el  acreedor  y  á  los  (|ue  son  con- 
secuencia imnediata  y  directa  de  la  falta  de  cumplimiento  de  la  obligación" 

Art.  1.196.  A  falta  de  convenio  en  las  obligaciones  que  tienen  por  objeto  una  cantidad 
de  dinero  los  daños  y  perjuicios  resultantes  del  retardo  en  el  cumplimiento,  .se  satisfacen 
con  el  pago  del  interés  legal,  salvo  disposiciones  especiales. 


420       FRENCH    COMPANY    OF    VENEZUELAN    RAILROADS    CASE. 

account  to    the    amount  above  mentioned — 241,357.70  boilvars — as 
principal  and  estimated  interest  on  the  debt. 

As  the  final  complement  in  the  discussion  of  this  part  of  the  indem- 
nification claim,  I  am  pleased  to  quote  the  high  authority  of  the 
opinion  of  my  honorable  and  learned  colleague  in  the  American  and 
Venezuelan  Commission,  Mr.  William  E.  Bainbridge,  in  the  case  of 
Ford  Dix  against  the  Venezuelan  Government  : 

Governments  like  individuals  are  responsible  only  for  the  proximate  and  natural  conse- 
quences of  their  acts.  International  a.s  well  a.s  municipal  law  denies  compensation  for 
remote  consequences  in  the  absence  of  evidence  of  deliberate  intention  to  injure.  In  my  judg- 
ment the  I0.SS  complained  of  in  this  item  of  Dix's  claim  is  too  remote  to  entitle  him  to  com- 
pensation. The  military  authorities,  under  the  exigencies  of  war,  took  part  of  his  cattle, 
and  he  is  justly  entitled  to  compensation  for  their  actual  value.  But  there  is  in  the  record 
no  evidence  of  any  duress  or  constraint  on  the  part  of  the  militaiy  to  compel  him  to  sell  his 
remaining  cattle  to  third  parties  at  an  inadecjuate  price.  Neither  is  there  any  special 
animus  showTi  against  Mr.  Dix  nor  any  deliberate  intention  to  injure  him  because  of  his 
nationality.  If  the  disturbed  state  of  the  country  impelled  Mr.  Dix  to  sacrifice  his  property, 
he  thereby  suffered  only  one  of  those  losses  due  to  tiie  existence  of  war  for  which  there,  is 
unfortunately,  no  redress.     (Venezuelan  Arbitrations  of  1903,  Ralston's  Report,  p.  9.) 

The  same  reasoning  is  applicable  to  the  necessity  of  the  company  to 
suspend  operations,  which  the  company  made  dependent  from  force 
majeure,  because  of  the  lack  of  revenues  during  four  montlis  by  reason 
of  the  revolution  and  the  failure  of  the  Government  to  pay  its  debts  to 
the  company  and  because  after  September  27,  1899, 

the  railroad  line  was  in  the  hands  of  the  insurgents,  and  until  the  day  of  the  suspension 
(October  12)  there  were  no  hopes  that  the  Government  would  recover  the  place. 

See  the  notice  of  the  manager  announcing  to  the  public  that  traffic 
had  been  suspended  published  in  the  newspapers  called  El  Fonógrafo, 
El  Anunciador,  and  La  Com'pañia  Francesa. 

The  second  charge  made  by  the  board  of  directors  of  the  company, 
resuming  the  claim  for  indemnification  demanded  from  the  Govern- 
ment of  Venezuela,  January  18,  1900,  reads  as  follows: 

(b)  The  amount  of  2.50,000  francs,  our  minimum  estimate  of  the  indemnification  due  by 
the  Government  of  Venezuela  for  substantial  repairs  and  damages  caused  because  of  its  acts 
to  the  whole  of  our  property  during  the  last  revolution. 

In  my  opinion  of  August  28,  1903, 1  granted  the  claimant  company 
an  indemnification  of  ten  thousand  (10,000)  bolivars  and  interest 
from  October  12,  1899,  for  damages  caused  the  steamer  Santa  Bár- 
bara while  in  the  service  of  the  government  of  the  State  of  Zulia  by 
reason  of  the  revolutiomiry  movement  at  that  time.  wSaid  estimate  is 
based  on  the  documentary  evidence  protluced  by  the  company  or,  in 
other  words,  on  the  estimate  of  the  damages  sufTered  by  the  steamer, 
as  directed  to  be  mtide  by  the  Frencli  consular  agent  in  Maracaibo, 
Mr.  A.  J.  d'Empaire,  on  January  2,  li)03,  Messrs.  Eugene  Creutzer,  a 
French  mechanical  engineer,  and  Manuel  Maria  Soto,  a  captain  in  the 
Venezuelan  merchant  marine,   bemg  intrusted    as  experts  with  the 


ADDITIONAL    OPINION    OF    VENEZUELAN    COMMISSIONER.        421 

appraisement  of  said  damages.  The  report  of  these  experts  to  the 
consular  agent  January  2,  1900,  which  bears  the  signature  of  said 
consular  agent,  fixes  the  amount  of  damages  at  the  sum  of  ten  thousand 
holwars.  There  is  no  other  evidence  on  record  purporting  to  estab- 
lish the  existence  of  damages  to  the  railroad  material  of  the  company, 
while,  on  the  contrary,  from  the  correspondence  of  ^Ir.  Decleva,  acting 
as  manager  of  the  company,  it  appears — 

that  peace  and  order  reigned  on  the  7th  of  June,  1899,  according  to  the  reports  received 
from  the  Hne. 

Under  date  of  June  18  the  same  manager  reports  to  the  company: 

I  am  back  after  an  uneventful  trip.  In  Santa  Bárbara,  in  La  Vigia,  along  the  line,  every- 
thing is  quiet.  The  road  is  in  pood  condition  and  tJie  material  complete.  All  our  engines  have 
come  back  to  the  shops,  even  those  employed  in  the  ballast  work,  which  I  had  pressed  into 
service  and  kept  by  order  of  the  ciml  and  military  authorities. 

The  only  thing  that  the  record  esta})lishes  in  reference  to  damages 
sustained  by  the  maritime  property  of  the  company,  besides  the 
damages  done  to  the  steamer  Santa  Bárbara,  valued  at  10,000 
bolivars,  is  the  loss  of  the  steamer  San  Carlos  y  Mérida,  at  anchor  m 
the  harbor  of  Maracaibo.  The  witnesses,  Edmond  Hainst,  Antonio 
Martinez  Peña,  and  José  Vicente  González  declared  at  the  inquest 
held  by  direction  of  the  French  consular  agent — 

that  the  steamer  San  Carlos  y  Mérida  at  anchor  opposite  the  warehouse  of  McGregor  &  Co., 
and  of  Rafael  Morales,  had  foundered  during  the  evening  of  the  1st  and  the  day  of  the  2d  of 
December,  1899,  because  of  the  shots  received  in  her  hull,  both  on  the  port  and  starboard 
sides,  during  the  engagement  and  shots  exchanged  between  the  forces  under  Gen.  Cipriano 
Castro  (on  the  Maracaibo  side)  and  the  forces  under  Gen.  José  Manuel  Hernandez  (on  the 
Haticos  side). 

What  is  the  liabilit}^  affecting  Venezuela  for  the  above-mentioned 
events?  The  answer  is  the  same  Mr.  Evarts,  Secretary  of  State,  gave 
Mr.  Hoffman  July  18,  1879  (Wliarton's  Int.  Law  Dig.,  section  224)  : 

As  a  principle  of  international  law,  the  view  that  a  foreigner  domiciled  in  the  territory  of  a 
belligerent  can  not  expect  exemption  from  the  operations  of  a  hostile  force,  is  amply  sustained 
by  the  precedents  you  cite,  and  many  others.  Great  Britain  admitted  the  doctrine  as  against 
her  own  subjects  residing  in  France  during  the  Franco-Prussian  war;  and  we,  too,  have 
asserted  it  successfully  against  similar  claims  of  foreigners  residing  in  the  Southern  States 
during  the  war  of  secession. 

I  do  not  deem  it  necessary  to  quote  numberless  decisions  of  arbitra- 
tion courts  or  commissions  in  support  of  the  views  of  the  eminent  Sec- 
retary of  State. 

Taking  as  a  basis  the  above-quoted  principle,  I  have  not  been  willing 
to  admit  liability  on  the  part  of  Venezuela  for  the  foundering  of  the 
steamer  San  Carlos  y  Mérida,  which  was  not  occupied  by  the  Govern- 
ment forces,  but  was  anchored  in  the  Maracaibo  harbor,  unfortunately 
placed  between  the  belligerent  forces  during  an  engagement  at  a  point 
where  the  cross  fire  damaged  her  hull  to  the  extent  that  she  foundered. 


422       FRENCH    rOMPAXY    OF    VENEZUELAN    RAILROADS    CASE. 

Under  such  circumstances,  the  indemnification  1  liave  granted  for 
substantial  damages  to  the  company's  property  is  Hmited  to  what  has 
been  estabhslied  as  aiiec  ting  tlie  resp()nsi])ilitY  of  the  Venezuehin 
Government — i.  e.,  the  damages  sustained  hy  the  steamer  Satitd 
Barbara  while  in  the  service  of  the  local  authorities  of  the  State  of 
Zulia,  appraised  by  experts  at  the  sum  of  ten  thousand  (10,000)  boli- 
vars. Tlie  interest  on  this  sum  at  the  rate  of  3  per  cent  from  t]  e 
date  of  the  return  of  said  vessel,  about  the  end  of  October,  1899,  until 
the  time  ])ef()re  stated,  represents  an  amount  of  1 ,075  l)()livars  ora  sum 
total  for  the  whole  item  of  11,675  bolivars. 

The  third  and  last  diarge  for  indemnification  contained  in  the 
report  of  the  director  of  the  company  under  discussion  is  as  follows: 

(<•)  The  amount  of  1,0.5(),(XX)  francs,  which,  at  the  rate  of  105,000  francs  per  month,  repre- 
sents the  amount  of  the  indcmnificatirjn  which  the  Government  of  Veneziiehi  owes  us  Ix'cause 
of  suppression  hij  itx  i/r/.v  of  our  traffic  during  the  ten  montlis  elapsed  Ix'tween  July,  1SÍH), 
and  May.   19f)0. 

The  above-mentioned  allegation  is  based  on  the  suppression  of  the 
trafile  of  the  comjiany,  a  fact  which  is  attributed  to  an  act  of  the  Gov- 
ernment of  A'enezuela.  From  all  the  documents  submitted  to  this 
commission  by  the  company,  the  only  established  fact  is  that  the  sus- 
pension of  traffic  from  the  month  of  July,  1S99,  to  October  12  of  the 
same  3'ear,  was  due  to  the  state  of  revolution  then  existing  in  the 
Cordillera  de  los  Andes  and  localities  contiguous  to  the  State  of  Zulia, 
such  revolution  '  ausing  interruption  of  the  carrying  trade  and  j^araly- 
zation  of  all  suth  commercial  transactions,  and  that  such  suspension 
of  traiiic  from  October  12  on  was  due  to  the  determination  taken  by 
the  manager  of  the  o})erations  of  the  c<impany,  as  j)ubllshed  in  the 
newspapers  in  the  State  of  Zulia,  to  such  causes  as  were  made  public 
by  Manager  Simon — i.  e.,  the  lack  of  receipts.  It  is  in  no  way  estab- 
lished that  tlie  suspension  of  the  railroad  and  steamer  traiiic  operations 
since  the  month  of  July  were  due  to  the  direct  individual  act  of  the 
Venezuelan  Government,  whether  by  government  is  imderstood  the 
one  which  terminated  on  October  19,  1S99,  with  the  fall  of  Gen.  Ignacio 
Andrade  or  the  dc  facto  government  succeediug  it  un(l(>r  Gen.  ('ij)riano 
Castro. 

Neither  tlie  authorities  of  the  government  of  General  Andrad(>  nor 
the  revolutionary  forces  led  b}'  General  Castro,  whit  h  afterwards  con- 
stituted the  government,  did  ever  perform  any  direct  act  which  nuiy 
render  the  A'enezuelan  Government  liable  for  the  suspension  of  traiiic 
both  by  land  and  by  water  of  the  company  during  the  months  elaj)sed 
from  July,  1899,  to  October  12,  1899,  while  it  is  ñdly  established  that 
the  inanag(Mneiit  directed  the  suspension  of  the  operations  of  the  lines, 
and  this  constitutes  an  act  of  its  own  volition. 

Even  in  the  event,  which  is  not  the  iwesent  case,  thai  (h(>  govern- 
mental authorities  .shoidd  have  directed  th(>  traille  of  the  trains  to 


ADDITIONAL    OPINION    OF    VENEZUELAN    COMMISSIONER.       423 

stop  temporarily  because  of  the  needs  of  war,  such  determination 
could  not  have  made  the  Government  of  Venezuela  incur  a  liability 
to  indemnify  the  damasses  sustained. 

There  can  be  no  reasonable  doul>t  that  it  is  the  rigiit  of  a  governnieut ,  in  situations  of  dan- 
ger or  organized  rebellion  and  revolution,  to  take  such  measures  as  it  may  deem  proper  to 
prevent  the  passage  of  persons,  either  for  travel  or  business,  from  one  point  to  another  in 
the  localities  where  there  are  armed  and  organized  troops  of  insurrectionists,  and  to  this  end 
it  certainly  has  the  right  and  the  power  to  suspend  traflic  upon  any  line  of  transportation; 
but  this  right  is  coupled  with  a  corresponding  «luty,  which  is  to  make  proper  compensation 
to  the  company  in  cases  other  than  those  wliere  the  territory  traversed  b}^  the  railroad  is  the 
theater  of  active  warlike^  operations  between  armed  forces.  (Opinion  of  the  Hon.  Henry 
M.  Duilicld,  umpire  in  the  Gcrman-\'cnezuelan  Claims  Commission  in  the  case  of  tlic  Great 
Railroad  of  \'enezuela  against  Venezuela,  llalston's  Report,  p.  (>.%.) 

That  the  authorities  of  the  State  of  Zulia  directed  the  suspension  of 
traffic  on  the  railroad  line,  as  alleged,  has  not  been  established.  But 
even  in  such  case,  the  operations  of  war  being  active  precisel}^  within 
the  territory  over  which  the  railroad  runs,  the  right  to  suspend  traffic 
rested  with  said  authorities,  the  Government  of  Venezuela  not  having 
obligation  on  that  score  to  indemnif}^ 

The  interruption  of  the  ordinary  course  of  business  is  an  inevitable 
consecjuence  of  the  state  of  war,  to  which  both  natives  and  foreigners 
must  submit,  and  therefore  the  losses  suffered  under  such  circum- 
stances do  not  create  any  liability  for  indemnification  to  the  govern- 
ment of  the  territory  where  the  war  takes  place.  This  is  the  same 
rule  controlling  the  case  of  liability  when  the  property  of  neutrals 
suffers  a  direct  injury  or  is  destroyed  during  an  engagement  of  the 
belligerent  forces. 

No  government  compensates  its  subjects  for  losses  or  injuries  suffered  in  the  cour.se  of 
civil  commotions     *     *     *.     (Hall,  4th  edition,  p.  232.) 

The  reason  for  this  is  obvious.  If  the  damages  suffered  by  natives  as 
well  as  aliens  in  consequence  of  a  war  were  to  be  indemnified,  the  sum 
total  would  be  so  great  that  whatever  the  war  might  have  left  standing 
would  not  be  sufiicient  to  indemnify  the  claimants  for  direct  damages. 
Pa3Tnent  woidd  have  to  be  made  with  their  own  property,  and  per- 
haps even  this  would  not  suffice. 

If  governments  were  under  obligations  to  accept  such  liabilities  as 
the  French  Company  of  Venezuelan  Railroads  has  pretended  should 
be  charged  against  the  A>nezuelan  Government  because  of  the  war, 
claiming  for  the  value  of  the  capital  invested  in  the  operation  of 
the  Santa  Barbara  and  El  Vigia  Railroad  an  indemnification  of 
18, 000, 000  francs,  because  the  state  of  war  compelled  the  company  to 
suspend  operations,  suppressing  all  its  revenues,  and  pretending 
besides  that  Venezuela  should  receive  in  exchange  both  the  railroad 
and  the  maritime  property  of  the  company  in  such  a  condition  as  it 
is  now,  why  should  it  not  be  admitted  also  that  all  railroad,  maritime, 
commercial,  industrial  companies,  even  the  undertakers  and  funeral 


'424       FRENCH    COMPANY    OF    VENEZUELAN    RAILROADS    CASE. 

directors  who  have  been  compelled  to  suspend  in  A^nezuela  their 
active  business  transactions  on  account  of  a  state  of  war,  are  entitled 
to  transfer  to  the  State  their  several  business  properties  in  exchantje 
for  an  indemnity  equivalent  to  their  working  capital  ?  The  claim  of 
the  French  Company  of  Venezuelan  Railroads  for  18,430,000  bolivars 
leads  to  such  absurdity. 

The  foregoing  statements  are,  I  beUeve,  suiRcient  to  firmly  estab- 
hsh  that  the  lack  of  grounds  to  base  the  claim  for  an  indemnification 
upon,*  larger  than  the  two  I  have  acknowledged,  relieves  the  Vene- 
zuelan Government  from  other  liabilities  to  the  French  Company  of 
Venezuelan  Railroads  than — 

First.  Indemnity  for  transportation  and  requisitions  as  established 
and  estimated  interest,  241,357.70  bolivars. 

Second.  Indemnity  for  damagçs  to  the  steamer  Santa  Bárbara  and 
interest,  11,675  bolivars. 

Or  a  sum  of  two  hundred  and  fifty-three  thousand  and  thirty-two 
boUvars,  rejecting  the  other  claims,  as  they  are  not  fully  established. 
In  this  connection  I  beg  to  reaffirm  in  each  and  every  particular  my 
opinion  of  August  28,  1903." 

Before  closing  this  paper  I  desire  to  be  allowed  to  make  two  remarks 
in  reference  to  the  opinion  submitted  by  my  learned  colleague  in  sup- 
port of  his  decision. 

The  first  remark  is  that  the  claim  my  colleague  quotes  in  his  opinion 
of  the  English  Company  of  the  Puerto  Cabello  and  Valencia  railroads,^ 
wliich  by  the  award  of  the  umpire  in  the  B^itish-^'enezuelan  mixed 
commission  obtained  an  indemnification  of  £231,794  7s.  lid.,  has 
no  similarity  whatever  with  the  present  claim,  as  my  learned  colleague 
avers,  but,  on  the  contrary,  it  essentially  difl'ers  as  regards  the  grounds 
upon  which  it  rests.  Such  claim,  as  the  honorable  umpire  knows 
better  than  we  do,  as  he  passed  the  final  judgment  upon  the  matter, 
was  entered  before  the  commission  by  the  English  Government  in 
behalf  of  the  Puerto  Cabello  and  Valencia  Railroad  Company,  demand- 
ing from  the  Venezuelan  Government  the  amount  of  £319.381  4s.  9d. 
as  arrears  on  the  guaranty  that  the  Venezuelan  Government  had 
given  the  English  railroad  company,  and  their  interest,  besiiles  a 
small  sum  for  freights.  The  English  Government  could  not  have 
submitted  to  an  international  arbitration  court  a  claim  similar  to 
that  submitted  to  this  commission  by  the  French  Company  of  A'ene- 
zuelan  Railroads. 

The  second  remark  is  that  it  was  not  Doctor  Paúl  who  published 
a  volume  entitled  '  '  Dictámenes  del  Arbitro  Venezolano  "  (Opinions  of  the 
Venezuelan  Commissioner) , among  which  is  found  that  which  my  learned 


a  See  pp.  3(59-405. 

<!>  Herein,  p.  408,  and  citing  Venezuelan  Arbitrations  of  \{KY¿,  líalston'.s  Report,  p.  4.55. 


ADDITIONAL    OPINION    0Î    FRENCH    COMMISSIONER.  425 

colleague,  with  a  certain  amount  of  fitness,  perhaps,  calls  '  '  a  formal 
defense  of  the  Venezuelan  nation."  It  is  the  Venezuelan  Govern- 
ment which  made  the  publication,  and  it  may  be  possible  that  such 
step  has  been  taken  with  the  purpose  that  the  French  commissioner 
or  the  counsel  for  the  claimant  companies  may  have  an  opportunity 
to  learn  as  far  in  advance  as  possible  the  arguments  therein  contained, 
so  as  to  be  able  to  contradict  them  with  convincing  proofs  and  argu- 
ments before  the  umpire.  I  will  simply  say  to  my  learned  colleague 
that  it  is  not  our  opinions  which  are  to  be  submitted  to  the  judg- 
ment of  the  honorable  umpire.  It  is  the  mass  of  papers  and  docu- 
ments around  which  the  claimant  has  woven  the  net  of  its  preten- 
sions which  will  give  no  little  trouble  to  the  honorable  umpire  to 
unravel.  It  is  the  claims  for  indemnification  against  the  Venezuelan 
Government  which  are  to  be  sifted  to  attain  the  ends  of  justice. 

I  also  submit  herewith  five  exliibits  translated  into  English,  marked, 
respectively,  with  the  numbers  2,  3,  4,  5,  and  6,  containing  several 
reports  from  the  railroad  inspectors  during  different  stages  of  the 
construction  and  operation  of  the  road  and  during  the  suspension 
of  traffic,  as  well  as  other  communications  from  the  company's  agents, 
addressed  to  the  department  of  promotion  (ministerio  de  fomento) 
of  the  United  States  of  Venezuela,  relating  to  the  facts  dealt  with 
in  the  present  case. 

NoRTHFiELD,  Vt.,  February  13,  1905. 


ADDITIONAL  OPINION  OF  THE  FRENCH  COMMISSIONER. 

After  having  read  the  additional  memoir  presented  by  my  honorable 
colleague,  I  can  only  maintain  the  position  which  I  took  at  the  meet- 
ing of  the  commission  of  August  28,  1903,  and  explained  in  the  prior 
memoir. 

Although  Doctor  Paúl  speaks  of  my  "arguments,"  I  maintain  that 
I  have  rendered  my  opinion  according  to  my  conscience,  as  my  posi- 
tion as  an  "arbitrator"  requires.  The  protocol  of  1902  gives  us  the 
title  of  "arbitrators"  and  not  "commissioners"  or  "advocates." 

I  have  no  arguments  to  furnish.  I  am  satisfied  to  examine  those 
of  the  company  and  its  defender,  Mr.  Dacraigne. 

I  have  judged  them  to  be  convincing.  I  have  read  the  two  memoirs 
presented  by  my  honorable  colleague,  not  to  combat  them,  but  to 
find  reasons  for  changing  my  convictions.  After  having  read  them 
my  conviction  remains  intact.  The  Venezuelan  Government  has 
failed  in  its  contractual  obligations  in  never  having  paid  to  the  com- 
pany the  guaranty  of  interest  as  agreed;  it  has  imposed  upon  the 
company,  which  was  forced  to  accept  it,  a  leonine  contract  of  which 
judges  in  equity  could  not  recognize  the  existence  any  more  than 


426       FRENCH    COMPANY    OF    VENEZUELAN    RAILROADS    CASE. 

ordinary  judges  can  accord  value  to  a  signature  given  under  threat; 
it  has  paid  the  pittance  which  it  has  kindly  given  on  this  occasion 
in  paper  Avithout  value;  it  has  used  the  materials  of  the  company 
for  its  needs;  it  has  deprived  it  of  its  ordinary  resources  and  employees; 
it  has  not  even  paid  the  price  for  services  demanded.  Consecjuently 
it  has  ohliged  the  company  to  suspend  operations.  It  is,  then,  respon- 
sible for  its  ruin,  and  it  owes  it  an  equitable  compensation.  The 
manner  which  I  have  adopted  for  calculating  this  compensation  seems 
to  me  to  be  the  only  one  which  meets  the  requirements  of  e(|uity 
and  avoids,  as  the  spirit  of  the  protocol  desires,  a  new  claim  being 
held  after  the  arbitral  sentence  is  rendered.  Besides  this  estimation 
is  made  in  accordance  with  the  terms  of  the  contract,  and  in  this 
mode  of  settlement  the  \"enezuelan  Government  would  find  advan- 
tages, since  it  would  acquire  a  concession  and  a  line  of  railroad  at  a 
price  inferior  to  the  contract  price  estimated  In'  itself. 

My  colleague  considers  that  mj^  decision  is  contrary  to  the  protocol 
and  that  the  commission  could  not  pronounce  the  rescission  of  a  con- 
tract.    Such  is  not  my  opinion.     "Wliat  are  the  terms  of  the  protocol? 

The  commission  will  unite  for  the  purpose  of  examining  "the  claims 
for  indemnities  presented  hj  Frenchmen."  If  the  two  arbitrators 
"do  not  agree  upon  the  amount  of  indemnities  to  be  allowed,  the 
demands  will  be  submitted  b}"  them  to  an  umpire,''  who  "will  decide 
without  appeal."  The  protocol  says  nothing  else,  and  it  woidd  be  to 
take  from  it  all  the  efficacy  which  the  signers  wished  to  give  it  to 
restrain  the  powers  of  the  umpire  contrary  to  the  letter  and  to  the 
spirit  of  this  diplomatic  act.  The  protocol  was  intended  to  terminate 
all  the  differences  existing  between  Frenchmen  and  the  Government 
of  Venezuela,  and  has  placed  no  limitation  upon  the  sovereign  j)ower 
of  the  arbitrators  to  weigh  and  decide  and,  in  case  of  disagreement 
between  the  latter,  that  of  the  umpire.  In  pronouncing  the  rescission, 
besides,  the  commission  would  only  cause  a  condition  of  fact  to  be 
registered,  solemnly,  and  consecrated,  the  Venezuelan  Government 
having  treated  the  contract  in  question  as  nonexisting,  since  it  has 
never  executed  its  clauses. 

Finally,  I  ought  to  remark  to  the  honorable  Mr.  Plumley  that  Doc- 
tor Paul  has  not  always  been  of  the  opinion  that  the  rescission  of  the 
contract  was  l)eyond  the  jurisdiction  of  the  commission,  since  at  the 
sitting  of  the  commission  of  May  12,  1903,  relative  to  the  Fieri  claim,  he 
decided  that  this  Frenchman  should  obtain  an  indemnity  in  exchange 
for  the  concession  which  he  held  of  a  contract  with  a  inunici])ality. 
The  umpire  can  refer  to  the  extract  of  the  minutes  of  the  said  meeting, 
which  he  will  find  in  the  dossier  of  the  Fieri  claim. 

As  to  the  foundation  of  the  claim,  it  is  not  for  me  to  defend  the  com- 
pany of  which  1  am  not  the  advocate  but  lh(»  judge:  I  can  oidy  pray 
the  umpire  to  go  over  the  dossier  and  the  argument  of  Mr.  Dacraigne. 


ADDITIONAL    OPINION    OF    B'RENCH    COMMISSIONER.  427 

It  only  remains  for  me  to  express  a  few  ideas  which  are  suggested  to 
me  by  the  additional  memoir  of  my  honorable  colleague,  additional 
memoir  which,  with  the  memoir  printed  in  the  "Dictámenes,"  form  so 
well  an  argument  in  favor  of  the  \'enezuelan  Government  that  the 
latter  has  presenteil  no  other  defense. 

In  support  of  his  opinions  Doctor  Paúl  cites  passages  frojn  known 
authorities  and  decisions  of  arbitrators  whose  science  and  im])artiality  I 
respect;  he  calls  to  his  aid  international  law  and  the  law  of  all  coun- 
tries. I  reply  that  these  authors,  these  arbit  rators,  and  these  laws  agree 
in  proclaiming  that  States,  like  individuals,  are  bound  to  keep  their 
engagements  solenuily  made  and  to  pay  their  debts,  and  are  responsi- 
ble, like  individuals,  for  damages  which  their  faults  have  caused  to 
others. 

Doctor  Paúl  asks  why  the  Venezuelan  Government  should  not  also 
reimburse  their  capital  to  all  enterprises,  "even  ñmerals,"  which  have 
suffered  in  Venezuela  from  operations  of  war.  And  to  this  ((uestion  I 
make  the  same  reply  as  he  :  We  are  agreed  upon  the  above.  It  is  not  a 
question  of  that  in  the  claim  of  the  French  (\:)mpany  of  Venezuelan 
Railroads,  which  was  bound  to  the  Government  by  a  formal  contract 
and  has  rendered  it  service  worthy  of  remuneration. 

Doctor  Paúl  maintains  that  there  is  no  possible  comparison  between 
this  claim  and  that  of  the  English  Company  of  Railroads  l)etween 
Puerto  Cabello  ahd  Valencia.  It  seems  to  me,  however,  that  both 
cases  relate  to  the  nonpayment  of  a  guaranty  of  interest.  Only  they 
did  not  dare,  because  of  the  easy  access  of  English  fleets  to  Puerto 
Cabello,  to  impose  upon  the  English  company  the  conditions  which  the 
French  company  was  obliged  to  accept  uui.er  penalty  of  obtaining 
nothing  for  the  sums  due  it.  A  look  cast  upon  the  map  of  A>nezuela 
is  more  instructive  than  all  the  explanations. 

It  is  also  known  that  France  is  opposed  to  using  force  against  the 
weak  to  have  her  rights  respected.  Besides,  the  umpire  knows  better 
than  anyone  the  claim  of  the  English  company,  which  I  have  merely 
heard  spoken  of,  and  he  will  be  able,  knowing  the  case,  to  decide  if 
what  has  been  granted  the  one  can  be  reñised  the  other  because  the 
other  is  less  fortunate  or  less  feared. 

Doctor  Paúl  courteously  observes  to  me  that  it  is  the  Venezuelan 
Government  that  has  had  the  ''Dictámenes  del  arbitro  venezolano'^ 
published,  perhaps  to  permit  the  French  arbitrator  and  the  advocates 
of  the  parties  to  understand  its  arguments,  and  besides  that  the  honor- 
able umpire  ought  to  pass,  not  upon  our  respective  decisions,  but  upon 
the  claims  themselves,  of  which  he  ought  to  become,  conversant 
integrally. 

On  the  first  point,  I  reply  to  my  honorable  colleague  that  I  have 
never  criticized  the  publication  of  the  "Dictámenes" — I  have  no 
authority  at  all  to  do  so.     I  am  content  to  state  that  this  publication 


428       FRENCH    COMPANY    OF    VENEZUELAN    RAILROADS    CASE. 

emphasizes  the  character  of  the  arguments  of  the  ''Dictámenes"  and 
gives  to  the  French  claimants  the  right  of  replying,  as  certain  of  them 
have  done. 

On  the  second  point  I  am  happy  to  share  completely  the  opinion  of 
my  honorable  colleague.  It  will  be  necessary  to  remember  on  this 
occasion  that  it  is  not  the  first  time  that  \ve  have  agreed  since  we  have 
airead}'  settled  together,  without  recourse  to  an  umpire,  72  claims  out 
of  the  80  that  were  submitted  to  us  under  the  protocol  of  1902. 

NoRTHFiELD,  Fehruary,  IJf.,  1905. 


OPINION  OF  THE  UMPIRE. 

July  25,  1887,  the  minister  of  public  works  of  the  United  States  of 
Venezuela,  duly  authorized,  executed  a  contract  with  the  Duke  of 
Momy,  a  French  citizen,  which  contract  was  duly  approved  by  the 
Congress  of  that  Republic  August  3,  1888.  It  contained  provisions 
which  are  summarized  by  the  umpire  as  follows  : 

The  Government  of  Venezuela  conceded  to  the  party  above  named 
the  right  to  build  a  railroad  from  ^lérida  to  the  Lake  of  Maracaibo; 
canalizing  the  river  Chamas,  the  Escalante,  or  any  other  navigable 
river  whatsoever;  the  exploitation  and  the  enjoyment  of  the  revenues 
of  the  enterprise  for  a  term  of  ninety-nine  years;  a  strip  of  500  meters 
of  land  on  each  side  of  the  railroad  track  without  payment  therefor  to 
be  taken  from  the  lands  of  the  nation;  the  right  to  avail  himself  of  the 
lands  belonging  to  individuals  wliich  might  become  necessary  for  the 
construction  of  the  railroad,  stations,  and  the  like,  in  conformity  with 
the  laws  governing  the  taking  of  lands  for  public  use  and  subject  to 
compensation  therefor;  the  wood  and  timber  necessary  for  the  con- 
struction of  the  works  to  be  taken  from  the  national  forest  without 
compensation  therefor;  the  right  to  introduce  into  the  country  free  of 
import  duties  the  engines,  material,  instnmients,  and  everything 
necessary'  for  the  construction  of  the  line,  subject  only  to  proceeding 
in  reference  thereto  in  conformity  with  the  provisions  of  article  177  of 
the  code  of  finances;  the  right  of  exemption  from  assessments  at  all 
times  by  the  nation  and  the  State;  a  right  to  extension  of  the  time 
allowed  for  the  beginning  and  the  completion  of  the  works  when  delay 
was  caused  by /orce  majeure,  the  entire  extension  not  to  exceed  one 
year;  a  guaranty  of  7  per  cent  on  the  capital  in  shares,  bonds,  or  obli- 
gations; the  right  to  construct  such  branch  lines  as  he  should  deem 
necessary;  the  privilege  of  transferring  the  contract  thus  executed  to 
any  other  person  or  com])any  at  his  ])leasure  on  notice  to  the  Vene- 
zuelan Government. 

The  Duke  of  Mornv  obligated  himself  in  said  contract  to  begin  the 
said  railroad  and  the  canalization  of  the  river,  in  case  it  be  necessary, 


OPINION    OF    THE    UMPIRE.  429 

within  one  year  from  the  date  of  the  contract  and  to  finish  the  Hne  in 
three  years  therefrom;  to  yield  up  to  the  Government  of  Venezuela  at 
the  expiration  of  the  said  ninety-nine  years,  without  indemnity  there- 
for, the  enterprise  with  all  its  annexes  and  ])roperties;  to  carry  the 
mail  free  of  charge;  to  transport  for  one-half  the  established  rates  the 
employees  of  the  Government,  its  soldiers,  troops,  and  elements  of 
war;  to  the  resolution  by  the  competent  tribunals  of  the  Republic,  in 
conformity  with  its  laws,  of  all  doubts  and  controversies  which  might 
arise  from  the  contract. 

August  13,  1888,  certain  declarations  and  amplifications  to  the  fore- 
going were  made  by  Gen.  Guzman  Blanco,  envoy  extraordinary  and 
minister  plenipotentiary  for  Venezuela,  to  and  with  the  said  Duke"  of 
Morny,  which  are  summarized  by  the  umpire  as  follows  :  The  Govern- 
ment of  Venezuela  thereby  and  therein  conceded  to  the  other  party 
that  the  railroad  from  Mérida  to  Lake  Maracaibo  was  to  be  divided  into 
two  sections;  the  first  section  was  to  start  from  a  point  upon  the  river 
Escalante,  which  point  the  concessionary  was  to  determine,  and  to  be 
continued  for  a  length  of  60  kilometers  in  the  direction  of  Mérida  ;  the 
second  section  was  to  start  from  the  terminal  point  of  tliis  first  section 
and  continue  to  the  city  of  Mérida  ;  an  extension  of  the  time  fixed  in 
said  modification  of  the  contract  for  the  building  of  the  first  section 
equal  to  the  delay  suffered,  if  the  delay  was  caused  hj  force  majeure; 
the  guaranty  of  7  per  cent  provided  for  in  the  original  contract  to 
begin  when  the  first  section  was  opened  for  exploitation;  an  extension 
of  the  time  fixed  in  this  modification  to  the  original  contract  for  the 
building  of  the  second  section  was  to  be  made  equivalent  to  the  delay 
suffered,  if  the  delay  was  caused  hj  force  majeure;  establishing  the 
capital  at  an  estimate  of  300,000  bolivars  per  kilometer  for  the  first 
section  and  at  350,000  bolivars  per  kilometer  for  the  second  section, 
the  guaranty  of  7  per  cent  to  rest  upon  the  amount  of  this  estimate  ;  to 
pay  the  said  guaranty  in  three  equal  parts  at  equal  periods  during  the 
year;  to  add  to  the  material  which  was  to  be  imported  free  of  duty 
under  the  terms  of  the  original  contract  the  engines,  material,  and 
instruments  necessary  for  the  running  of  the  railroad  ;  and  that  during 
the  period  of  twelve  years  from  the  date  of  the  said  modification  of  the 
original  contract  the  Government  would  not  establish  a  service  of 
navigation  to  carry  on  traffic  between  the  terminal  point  of  the  rail- 
road or  any  points  upon  the  Escalante  and  the  different  ports  of  the 
Lake  of  Maracaibo. 

The  concessionary  was  obligated  therein  to  begin  the  work  of  build- 
ing the  first  section  of  said  railroad  within  six  months  from  August  13, 
1888,  and  to  complete  the  same  within  two  years  therefrom;  to  com- 
plete the  construction  of  the  second  section  within  four  years  from  the 
date  named,  and  to  introduce  the  material  which  was  to  come  in  duty 


430       FRENCH    COMPANY    OF    VENEZUELAN    RAILROADS    CASE. 

tree  in  conformity  with  the  provisions  of  the  law  of  finances  provided 
for  in  such  matters. 

April  10,  1891,  further  mochfications  of  the  contract  were  made  by 
the  Congress  of  the  United  States  of  Venezuela  b}'  and  with  the  repre- 
sentative of  the  French  Company  of  Venezuelan  Railroads,  which 
latter  had  succeeded  to  the  rights  of  the  original  concessionary,  which 
modifications  are  summarized  by  the  umpire  as  follows:  The  Republic 
ratified  in  behalf  of  said  company  the  contract  of  August  13,  1888,  and 
confirmed  the  original  contracts  except  where  they  were  contrary  to 
the  conditions  named  in  that  modification.  The  company  renounced 
and  declared  null  and  void  Article  X  of  the  contract  of  August  13, 
1888,  wdiich  gave  exclusive  navigation  privileges  on  the  river  Esca- 
lante and  the  difierent  ports  of  the  Lake  of  Maracaibo.  It  was  mutu- 
ally stipulated  that  the  concession  was  to  be  limited  to  the  first 
section,  which  w^as  to  extend  from  Santa  Bárbara  to  Camino  Real,  a 
point  1  kilometer  distant  from  La  Vigia.  The  guaranty  of  7  per  cent 
was  to  be  reduced  by  the  amount  of  the  net  benefits  received  by  the 
company,  these  being  composed  of  the  net  j)roduct  of  the  receipts  of 
every  nature  made  by  the  exploitation  of  the  railroad  after  deducting 
the  general  expenses  of  the  company  and  of  its  management;  the 
sums  paid  on  account  of  said  guaranty  to  be  treated  as  advances  only, 
to  be  returned  as  and  wdien  the  benefits  received  by  the  company 
exceeded  7  per  cent  on  the  guaranteed  capital  by  api)lying  one-half 
of  such  excess  in  li(|uidation  of  said  advances  until  all  Avas  reim- 
bursed; that  after  said  advances  had  been  fully  reimbursed  the  Gov- 
ernment was  to  continue  to  share  in  said  benefits  to  the  extent  of  20 
per  cent  thereof.  There  was  added  to  the  provision  in  regard  to  the 
resolution  of  all  doubts  and  controversies  by  the  tribunals  of  the  Re- 
public the  further  agreement  that  in  no  case  were  these  doubts  and 
controversies  to  give  place  to  international  claims. 

It  wall  be  observed  that  by  the  modification  of  the  original  contract 
made  August  13,  1888,  the  capital  of  the  company  for  the  purpose  of 
reckoning  the  guaranty  w^as  estimated  at  18,000,000  francs. 

Following  this  arrangement  a  French  company  was  formed  Sep- 
tember 28,  1888,  taking  the  name  of  French  Company  of  Venezuelan 
l^ailroads,  with  headfiuarters  at  Paris,  and  its  duration  limit od  to 
ninety-nine  years.  The  concessions  obtained  by  the  Duke  of  Morny 
were  taken  over  by  this  company.  The  social  fund  was  fixed  at 
300,000  francs,  divided  into  6,000  shares  of  500  francs  each;  the 
other  resources  of  the  company  necessary  to  the  enterprise  were  to  be 
raised  by  a  loan.  The  laws  of  the  company  provided  that  from  the 
guaranty  of  the  Venezuelan  Government  of  7  per  cent  there  should  be 
set  aside  annually  a  sullicient  sum  to  insure  the  payment  of  interest 
on  the  capital,  which  was  to  be  obtained  by  loans.    This  guaranty  was 


OPINION    OF    THE    UMPIRE.  431 

reckoned  to  produce  126,000  francs  annually  on  the  estimated  capital 
of  18,000,000  francs. 

October  26,  1888,  the  company  created  41,664  obligations  of  a 
nominal  value  of  500  francs,  each  representing  2.5  francs  annual 
interest. 

With  the  capital  thus  provided,  a  syndicate  undertook  to  construct 
the  railway,  pay  the  interest  in  the  meantime,  and  reserve  iuially  to 
the  company  for  current  funds  at  the  time  the  first  section  was  ready 
for  exploitation  the  sum  of  300,000  francs.  The  building  of  the  road 
was  in  progress  from  1889  to  1892. 

It  is  complained  by  the  company  that  on  April  16,  1891,  the  Gov- 
ernment, by  the  rule  of  the  stronger,  compelled  in  the  agreement  of 
that  date,  the  provisions  of  wliich  have  already  been  stated,  the  intro- 
duction of  the  clause  into  the  original  contract  that  there  was  to  be 
deducted  from  the  amount  of  the  guaranty  the  actual  net  profits  of 
the  company. 

September  29,  1891,  the  ûrst  section  was  nearly  completed  and 
about  ready  for  use,  when  there  occurred  a  very  serious  inundation, 
causing  a  considerable  delay  and  the  expenditure  of  a  large  sum  of 
money  to  reconstruct  the  parts  destroyed.  It  was  April  1,  1892, 
when  the  company  considered  the  work  of  construction  completed 
and  demanded  of  the  Government  its  acceptance.  But  the  State  of 
Andes  was  then  in  revolt,  while  that  of  Zulia  was  loyal  to  the  titular 
Government.  A  portion  of  the  railroad  was  in  each  State.  To  whom 
should  it  apply  ?     Which  was  its  Government  ? 

August  5,  1892,  the  company  made  publication  in  the  local  papers 
of  the  fact  of  the  completion  of  the  railroad  and  that  it  had  begun 
business. 

The  company  suffered  badly  from  the  insurrection,  in  requisitions 
from  both  sides,  in  the  dispersions  of  its  workmen,  in  the  disappear- 
ance of  its  traffic,  while  the  Government  in  the  midst  of  this  intestine 
war  paid  neither  requisitions,  damages,  nor  guaranties.  The.  line 
was  repaired  from  the  resources  of  the  company,  but  it  thereby 
exhausted  its  capital,  and  November  1,  1892,  judicial  liquiilation 
resulted.  The  creditors  accepted  the  proposition  made  by  the  com- 
pany to  pay  them  pro  rata  and  permitted  it  to  continue  its  enter- 
prise. 

February  23,  1893,  the  engineer  of  the  Government  examined  the 
line  and  declared  it  to  be  well  constructed  and  advised  that  by  April 
1,  1893,  it  would  be  in  a  situation  to  be  accepted  by  the  Government. 
March  23,  1893,  the  decree  of  inauguration  was  published,  and  on 
May  10,  1893,  the  record  was  made  of  its  definite  acceptance  by  the 
Venezuelan  Government,  dated  back  to  April  1  of  that  year.  As 
a  matter  of  fact,  the  line  had  been  in  operation  since  1892,  with 
receipts  for  that  year  aggregating  149,241.21  francs,  for  1893  the 


■132      FRENCH    COMPANY    OF   VENEZUELAN    RAILROADS    CASE. 

receipts  being  570,061.37  francs,  and  in  1894  they  were  458,525.24 
francs. 

An  earthquake  in  1894  did  great  damage  to  the  roadbed  and  to 
the  bridges,  which  required  large  expenditures  to  restore.  The 
receipts  through  its  trafl&c  were  insufficient  to  meet  these  expendi- 
tures, and  the  national  Government,  though  repeatedly  urged  so 
to  do,  paid  neither  guaranties  nor  indemnities  nor  requisitions.  At 
the  general  meeting  of  the  shareholders  of  the  company,  held  June 
30,  1894,  its  reports  showed  a  claim  against  the  Venezuelan  Govern- 
ment amountmg  to  2,205,000  francs.  In  fact,  the  repairs  which  were 
required  by  the  earthquake  had  been  made  only  by  the  issue  of  bonds 
of  the  denomination  of  500  francs,  drawing  interest  at  6  per  cent,  to 
be  reimbursed  by  the  sums  to  be  received  from  the  respondent  Gov- 
ernment. On  June  20,  1895,  the  report  to  the  general  meeting  of  the 
shareholders  showed  a  claim  against  this  Government  of  5,820,785.47 
francs.  In  1894  the  company  issued  800  of  the  bonds,  which  have 
been  mentioned,  and  in  1895  it  made  a  further  issue  of  400.  In  the 
month  of  December  of  this  last-named  year  requisitions  by  the 
national  Government  began  again;  the  financial  condition  of  the 
company  became  more  strenuous.  It  sought  diplomatic  aid  through 
its  o-^Ti  Government,  but  obtained  no  results.  December  31,  1895, 
it  claimed  of  the  Government  of  Venezuela  as  follows: 

Bolivars. 

For  guaranty  to  December  31,  1895 4,725,000.00 

Damage  to  the  exploitation 396,  924.  75 

Damage  for  recruiting  its  workmen 525,  509.  57 

Requisitions 96,  320. 00 

Damage  resulting  from  the  nonpayment  of  the  guaranty  for  the  issue  of 

bonds ~. 1,308,000.00 

Total 7, 051, 754. 32 

The  years  1892  to  1894,  both  inclusive,  were  involved  more  or  less 
in  the  successñd  CVespo  revolution.  It  was  February  20,  1894,  that 
General  C-respo  became  constitutional  President  of  the  Republic  for 
a  term  of  four  years.  But  it  was  not  imtil  the  year  1895  that  his 
authority  was  everywhere  recognized,  and  up  to  that  time  there 
were  occasional  revolutionary  outbreaks,  entailing  large  expense  upon 
the  Government  and  lessening  and  interrupting  its  sources  and  means 
of  revenue. 

The  answer  of  the  national  Government  to  the  repeated  and  urgent 
requests  of  the  company  for  the  recognition  and  ])ayment  of  its  credits 
was  always  a  lack  of  ñinds,  of  which  fact  there  could  be  no  real  denial. 
The  respondent  Government  had  not,  however,  agreed  to  the  sums 
demanded  of  it  by  the  company. 

By  1896  the  financial  condition  of  the  national  Government  had 
greatly  improved,  and  in  April  of  that  year,  together  with  Mr.  Charles 
Weber,  the  duly  constituted  representative  of  the  French  CQmpany 


OPINION    OF    THE    UMPIRE.  433 

of  Venezuelan  Railroads,  it  took  up  the  claims  of  that  company. 
Substantially  the  same  figures  were  presented  to  the  respondent 
Government  as  have  been  here  produced  of  date  December  31,  1895. 
The  consideration  and  discussion  of  these  affairs  resulted  in  a  formal 
convention  made  April  18,  1896,  when  was  brought  in  first  a  rehearsal 
of  the  salient  matters  of  the  previous  contracts  and  then  the  state- 
ment of  the  claim  of  the  company  against  the  respondent  Govern- 
ment.    This  statement  is  succeeded  by  the  language  which  follows: 

(c)  The  Government  has  refused  the  payment  of  this  guaranty  during  the  time  between 
April  1,  1892  (date  upon  which  the  hne  would  have  been  opened  to  trafiic  had  it  not  been 
for  the  forced  recruiting  of  workmen) ,  and  June  1, 1893,  date  of  the  official  inauguration;  and, 
furthermore,  it  has  refused  the  payment  of  the  amount  of  2,326,751.32  bolivars,  which  treats 
of  damages  not  well  founded. 

The  company,  although  maintaining  in  principle  the  good  foundation  of  the  claim,  shows 
itself  dispo.scd  to  make  important  concessions  in  view  of  arrivmg  at  an  agreement,  and  after 
lengthy  discussions  upon  the  accounts  presented  the  Government  and  the  company  by  way 
of  a  transaction  have  agreed  upon  that  which  follows: 

Art.  1.  The  company  reduces  to  1,950,000  bolivars  the  total  amount  of  all  its  claims  for 
the  guaranty  of  7  per  cent,  liquidated  until  December  31,  1895,  for  every  other  cause  which 
it  would  have  the  right  to  invoke. 

Art.  2.  For  the  redemption  of  the  obligation  bj'  which  the  Government  has  to  continue 
to  pay  the  same  guaranty  of  7  per  cent  upon  18,000,000  bolivars  guaranteed  capital  during 
ninety-nine  years,  the  term  of  the  above-mentioned  contract,  the  company  consents  to 
receive  2,500,000  bolivars.  Articles  2,  3,  and  4  of  the  said  contract  of  June  17,  1891, 
become  by  this  fact  without  force. 

Art.  3.  The  payment  of  both  these  amounts  is  to  be  made  by  the  Government  simultane- 
ously with  the  present  act  and  by  remitting  to  the  representative  of  the  company  an  order 
upon  the  Disconto  Gesellschaft  of  Berlin  for  the  amount  of  4,450,000  bolivars  hi  bonds  at 
par  of  the  Venezuelan  loan  of  the  Disconto  Gesellschaft  of  1896  bearing  5  per  cent  interest 
annually  with  1  per  cent  amortization,  the  same  order  bearing  moreover  the  signed 
approval  of  the  agent  of  the  Disconto  at  Caracas. 

Art.  4.  The  representative  of  the  company  declares  m  consequence  the  nation  to  be  free 
from  every  responsibility,  as  well  upon  the  guaranty  of  7  per  cent  already  due  as  for  the  obli- 
gation to  pay  this  same  guaranty  in  the  future,  and  he  will  repeat  this  same  declaration  in 
the  receipt  which  he  will  give  to  the  direction  of  the  Disconto  Gesellschaft. 

Art.  5.  The  company  binds  it.self  within  six  months  from  this  date  to  repair  whatever 
deteriorations  have  been  sustained  by  the  railroad  from  the  changmg  of  the  course  of  the 
river  Chamas,  and  to  keep  the  line  in  a  good  condition  for  use,  in  conformity  with  obligations 
assumed  in  the  previous  contracts,  and  submitting  itself  to  the  penalties  which  the  law, 
inflict  in  this  matter. 

Art.  6.  In  all  that  which  is  not  opposed  to  the  .stipulations  of  this  convention  the  rights 
and  obligations  resulting  for  the  company  from  anterior  contracts  to  which  reference  has 
been  made  retain  all  their  force  and  all  their  vigor. 

Made  in  duplicate  at  Caracas,  April  18,  1896. 

Two  days  thereafter  the  ministers  of  finance  antl  of  ]3ublii'  works 
for  Venezuela  made  the  following  communication: 

Caracas,  April  20,  1896. 
To  the  Direction  of  the  Disconto  Gesellschaft,  Berlin. 

Gentlemen:  In  conformity  with  the  provisions  of  article  5  of  the  contracts  of  the  loans 

passed  between  our  Government  and  your  direction,  the  citizen  President  of  the  Republic 

informs  you  that,  in  accordance  with  the  contract  passed  between  the  national  Government 

and  the  French  Company  of  Venezuelan  Railroads,  you  will  have  to  remit  to  the  said  com- 

S.  Doc.  533,  59-1 28 


434       FRENCH    compatît    OF    VENEZUELAN    RAILROADS    CASE. 

pany  the  sum  of  4,450,000  bolivars  in  bonds  of  Venezuelan  loan  of  1896  at  5  percent  annual 
interest,  with  1  per  cent  amortization. 

It  is  to  be  noted  that  in  giving  you  the  receipt  for  this  amount  the  French  Company  of 
Venezuelan  Railroads  is  obliged  to  make  the  following  declarations: 

"That  it  recognizes  as  annulled  all  its  credits  against  the  Venezuelan  Government  for  the 
guaranty  of  7  per  cent  due  up  to  Decemlx'r  31,  189.5,  and  that  it  renounces  absolutely 
this  guaranty  during  the  remainder  of  the  ninety-nine  years,  the  term  of  its  concession; 
that  in  consequence  it  declares  the  nation  freed  from  all  responsibilities." 

June  27,  1896,  there  was  a  general  meeting  of  the  shareholders  of 
the  French  Company  of  Venezuelan  Railroads,  and  the  council  of 
administration  made  its  report.     In  that  report  is  found  the  following: 

At  the  beginning  of  this  year,  1896,  the  Venezuelan  Government,  being  desirous  of  mak- 
ing a  settlement  of  its  debts  with  the  different  railroad  companies  of  Venezuela,  negotiated 
with  the  Bank  of  Berlin,  the  Disconto  Gesellschaft,  for  the  creation  of  a  loan,  called  the 
Venezuelan  loan  of  1896,  bearing  5  per  cent  annual  interest  and  with  1  per  cent  amortiza- 
tion, and  payable  within  the  term  of  thirty-six  years  and  a  half.  The  loan  was  guaranteed 
by  custom-house  receipts.  The  nominal  amount  of  this  loan  was  fixed  at  50,000,000 
bolivars. 

Each  of  the  German,  French,  English,  and  other  railroad  companies  were  invited  by 
the  Venezuelan  Government  to  negotiate  simultaneously  the  paj-ment  of  what  was  due 
them  and  the  redemption  of  the  guaranty  which  had  been  conceded.  EatJi  of  these  com- 
panies, after  lively  debates,  accepted  the  conditions  imposed  by  the  Venezuelan  Government, 
Jiarsh  as  they  were,  under  penalty  of  seeing  themselves  eliminated  forexer  from  the  only  com- 
bination which  might  terminate  their  credit  upon  this  Government. 

Like  the  other  companies,  we  then  accepted  the  conditions  which  were  imposed  upon 
us.  However,  we  did  not  authorize  our  mandatary  at  Caracas  to  give  our  acceptance 
until  after  we  had  taJcen  counsel  and  received  the  authority  of  the  controllers  appointed  by 
the  shareholders. 

^e  :{:  %  4£  :jc  :|e  :): 

Seeing  the  necessity  of  keeping  the  social  assets  up  to  their  full  value  and  with  the  author- 
ity of  the  controllers  appointed  in  execution  of  the  concordat  to  represent  the  creditors, 
the  company  has  had  to  issue  up  to  this  date  2,.50O  privileged  bonds  of  .500  francs  to  procure 
funds  for  repairing  the  line,  repairs  which  are  not  yet  finished. 

Recently  the  Venezuelan  Government,  having  shown  a  desire  to  settle  with  the  different 
companies  of  railroads  in  Venezuela,  our  company,  following  the  example  of  the  Genuan, 
English,  and  other  companies,  .sent  to  Venezuela  its  formal  representatives,  and  after  a  long 
negotiation  it  succeeded  in  obtaining  from  the  Government  of  Venezuela  the  remittance 
for  the  balance  of  credits  and  for  the  redemption  of  the  guaranty  for  the  future  of  its  con- 
cession a  net  sum  of  3,200,000  bolivars  in  bonds  of  Venezuelan  loan  of  5  per  cent,  1896, 
above  mentioned. 

The  able  patronage  of  the  Disconto  Gesellschaft  of  Berlin  assures  the  actual  value  of 
this  title. 

However  grievous  sudi  a  transaction  has  seemed  to  us,  we  had  to  resign  ourselves,  after 
having  been  authorized  by  the  official  representatives  of  the  shareholders  to  accept  it, 
like  other  railroad  companies,  jis  the  only  means  of  obtaining  any  indenmity  what- 
ever.    *     *     * 

We  shall  reijuest  of  you,  gentlemen,  to  ratify  the  transaction  l)etwccn  tiie  \'cnezuelan 
Government  and  your  company. 

After  the  reading  of  this  report  the  shareholders  passed  the  resolu- 
tion which  follows  : 

The  special  assembly,  after  having  heard  the  report  of  the  council  of  administration 
read,  ratifies  the  transaction  between  the  Venezuelan  Government  and  the  council  of  admin- 


OPINION    OF    THE    UMPIRE.  435 

istration  of  the  Company  of  Venezuelan  Railroads,  assuring  regularly  the  dehts  of  the 
said  Government  toward  the  said  company  and  the  redemption  of  the  guaranty  in  favor 
of  the  said  company  by  act  of  concession  which  Inid  been  attributed  to  it. 

June  25,  1897,  there  was  an  annual  meeting  of  the  shareholders  of 
the  company,  and  among  its  proceedings  is  found  a  resolution  which  is 
here  reproduced  : 

Second  resolution.  The  general  assembly,  approving  the  measures  taken  by  the  council 
of  administration  following  the  disturbances  caused  by  the  inundations  which  .succeeded 
the  earthquake  of  1894,  authorizes  it,  so  far  a.s  it  has  need,  to  realize  in  the  best  measures 
possible  a  complement  of  the  loan  voted  in  1894,  which  will  be  represented  by  1,500  privi- 
leged bonds  of  the  nominal  value  of  500  francs,  bearing  6  per  cent  annual  interest  and 
redeemable  in  at  least  ten  years  from  January  15,  1897,  raising  thus  from  2,500  to  4,000 
the  total  number  of  these  ten-year  bonds. 

June  30,  1898,  there  occurred  an  annual  meeting  of  the  shareholders 
of  the  company.  There  was  a  report  of  the  management  of  the  line 
for  the  year  then  past,  from  which  it  is  learned  that  the  exploitation 
suffered  a  loss  of  10,401.75  francs,  and  that  the  finishing  of  the  repairs, 
bridges,  buildings,  etc.,  amounted  to  499,805.70  francs.  There  fol- 
lowed certain  resolutions,  the  second  of  which  is  here  quoted  : 

Second  resolution.  The  general  meeting  of  the  shareholders  authorizes  the  council  of 
administration,  first,  to  remit,  July  1, 1898,  the  full  amount  of  the  bonds  of  the  Venezuelan 
loan,  5  per  cent,  1896,  which  the  company  possesses  on  deposit  under  its  name  at  the 
Disconto  Gesellschaft  at  Berlin,  contra:  (a)  the  remission  of  3,619  ten-year  privileged 
bonds,  6  per  cent,  of  the  company,  (b)  abalance  in  cash  of  390,500  francs;  second,  to  call 
on  July  15,  1898,  for  the  redemption  at  par  of  500  francs  on  381  privileged  bonds,  6  per 
cent,  of  the  following  numbers,  and  to  raise,  to  meet  this  payment,  the  .sum  of  190,.500 
francs  of  the  390,500  francs  received  as  in  article  1.  The  balance  of  200,000  francs  will 
be  used  as  current  fund.     (Numbers  of  the  bonds  here  given.) 

June  29,  1899,  there  again  occurred  the  company's  annual  meeting. 
The  directors  presented  their  report,  from  w^hich  is  taken  the  following 
quotation  : 

Our  railroad  has  given  us  an  income  of  8,966.23  francs,  while  our  service  of  navigation 
has  caused  us  a  loss  of  22,324.83  francs.  There  is,  then,  a  net  loss  of  13,358.60  francs. 
We  have  finished  the  repairing  of  the  damages  which  were  caused  by  the  earthquake  of  1894 
and  by  the  floods  which  up  to  1897  were  the  consequence.  The  special  expenses  paid  for 
this  in  1898  reached  149,191.86  francs,  which  were  settled  by  means  of  funds  at  hand;  the 
latter  were  reduced  December  30  last  to  51, .344.86  francs.  The  somewhat  unsatisfac- 
tory results  are  attributable  almost  exclusively  to  the  consequences  of  the  political  crisis 
which  had  been  going  on  in  Venezuela  for  the  greater  part  of  the  year.  *  *  *  Among 
the  256,126.14  francs  of  the  different  debits  found  in  the  balance  sheet  which  we  are 
going  to  submit   to  you  the  Venezuelan  Government  is  .set  down  for  174,077.20  francs. 

For  some  months  quiet  seems  to  have  been  reestablished  in  the  country.  We  hope  that 
with  it  the  commercial  situation  will  resume  normal  conditions  and  that  our  exploitation 
will  profit  from  it. 

The  first  months  of  1899  seemed  to  justify  this  hope. 

The  reimbursement  of  our  privileged  bonds  ha-s  been  carried  on  regularly  and  in  con- 
formity with  your  decision  of  June  30,  1898. 

Earlier  in  this  opinion  the  gross  receipts  of  the  railroad  for  1894 
were  stated.     The  net  result  for  that  year  was  72,332.15  francs.     In 


436       FRENCH    COMPANY    OF    VENEZUELAN    RAILROADS    CASE. 

1895  the  net  receipts  were  101,676.97  francs  and  in  1896  they  were 
102,319.28  francs.  In  1897  the  respondent  Government  employed  the 
line  to  transport  its  troops  and  materials,  but  paid  nothino:  and  did  not 
answer  the  claims  presented  by  the  company.  As  a  result  the  year 
1897  showed  a  loss;  similarly,  the  year  1898. 

The  4,000  bonds  issued  by  the  company,  under  authorization  which 
has  been  (juoted,  were  largely  held  by  the  companies  D^le  &  Bacalan 
and  of  Tives-Lille,  and  with  these  companies  it  had  always  been  under- 
stood that  the  payments  made  by  the  State  were  to  be  used  first  of  all 
in  pajTnent  of  these  bonds  ;  it  was  for  this  reason  and  under  the  author- 
it}^  above  quoted  and  by  reason  of  the  general  inexécution  of  the 
engagements  of  the  State  toward  the  company,  that  in  the  month  of 
June,  1898,  the  French  Company  of  Venezuelan  Railroads  turned  over 
to  these  financial  companies  the  Venezuelan  loan  of  1896,  which  was 
arranged  through  the  Disconto  Gesellschaft,  of  Berlin.  And,  as  has 
been  seen  in  the  quotation  last  made,  there  was  left  for  the  current  use 
of  the  railroad  company  a  balance  of  200,000  francs.  In  June,  1898, 
there  was  a  new  revolutionary  movement  aflecting  especially  the 
States  of  Zulia  and  Andes.  The  general  in  charge  of  the  Federal 
forces  drafted  the  workmen.  The  director,  Mr.  Brun,  was  shot  at 
Santa  Bárbara  in  the  midst  of  a  conflict,  and  died  of  his  wounds;  there 
were  rec^uisitions  of  material,  of  trains  for  the  transfer  of  troops,  of 
war  material,  etc.  The  passenger  and  freight  service  was  paralyzed  ; 
the  claims  of  the  railroad  received  no  attention  from  the  Government  ; 
there  was  no  payment  for  the  services  and  sacrifices  required  of  and 
imposed  upon  the  company,  and  its  very  existence  was  seriously 
threatened.  It  appealed  to  its  own  Government,  it  rehearsed  its 
wrongs  and  grievances  but  it  obtained  no  relief.  Just  as  the  exploita- 
tion began  again  to  yield  some  income  and  the  revenues  of  the  national 
Government  began  to  quicken,  the  successful  revolution  of  General 
Castro  broke  out.  Requisitions  were  again  in  evidence  and  more  than 
ever  before.  Destruction  was  manifest  on  all  sides;  grave  losses  were 
caused  to  the  boats;  while  the  revolutions  took  from  it  its  traííic,  the 
Government  made  requisitions  and  neither  paid  anything. 

This  successful  revolution  of  General  Castro  wliich  began  in  the 
spring  of  1899  brought  serious  disaster  to  the  railroad  in  many  ways. 
A  letter  of  date  October  12,  1899,  to  the  French  minister  of  foreign 
aflfairs  by  Mr.  Reynaud  of  the  administrative  board  vividly  portrays 
the  situation.     Selections  therefrom  are  quoted: 

The  political  and  revolutionary  crisis  which  exists  in  Venezuela  has  not  diminished  in 
intensity  since  the  last  communication  wiiich  we  had  the  honor  of  addressing  to  you  Auf^i^^t 
23  la.st. 

Our  projMîrty  and  all  our  possessions — our  railroad  material  and  our  lH)ats — have  not 
ceased  for  several  months  to  Ik*  arbitrarily  seized  or  se(|uestered  hy  the  authorities,  now  said 
to  lie  legal,  now  revolutionary.  The  future  of  the  exploitation  of  our  railix)ad  and  lK>ats  ¡m 
grievously  comproniised  in  the  source  of  its  receipts. 


OPINION    OF   THE    UMPIRE.  437 

The  harvests  are  destroyed,  abandoned,  or  lost;  the  workmen  are  pursued  and  tracked  in 
the  forests;  the  owners  and  merchants  in  flight  or  ruin. 
Finally,  our  resources  are  exhausted. 
We  have  been  obliged,  then,  to  suspend  our  exploitation. 

It  was  two  days  anterior  to  the  date  of  the  above  letter  that  Mr. 
Simon,  general  manager  of  the  railroad,  informed  the  citizen  president 
of  Zulia  in  writing  that  ''because  oí  force  majeure"  all  operations  of 
the  steamers  and  of  the  railroad  from  Santa  Bárbara  to  La  Vigia  were 
suspended.  In  this  communication  the /orcé!  majeure  referred  to  is 
thus  explained: 

1.  All  the  resources  which  the  company  had,  whether  at  Paris  or  at  Maracaibo,  have  been 
completely  exhausted  in  paying  the  expenses  of  this  railroad  and  its  steamer  Santa  Bárbara 
during  all  of  the  revolutions,  and  then  the  Venezuelan  Government  and  the  insurgents  used 
these  means  of  transfer  until  little  by  little  they  became  masters  of  them. 

2.  Since  September  27,  1899,  the  revolutionists  have  again  taken  possession  of  the  line, 
and  consequently  we  can  have  no  receipts  except  from  our  steamers  and  of  these  the  Govern- 
ment is  con.stantly  taking  possession. 

3.  All  our  efforts  with  the  national  Government  at  Caracas,  as  well  as  with  the  govern- 
ment of  Zulia,  to  recover  the  large  sums  which  they  owed  the  company,  have  had  no  success, 
not  even  for  the  little  sums  of  300  and  144  bolivars,  which  were  to  be  paid  October  3,  1899. 

4.  In  these  conditions  if  the  company  continued  the  exploitation  it  would  be  obliged  to  go 
into  bankruptcy. 

5.  If  susperuls  its  exploitations  unthout  renouncing  its  rights  on  that  account  upon  the  con- 
cession of  the  railroad  from  Santa  Bárbara  to  La  Vigia  until  the  special  settlement  takes  place 
hetrveen  the  French  company  and  the  Government. 

A  communication  to  the  same  effect  was  sent  to  the  national  Gov- 
ernment through  its  minister  of  public  works.  In  it  Mr.  Simon  stated 
that  the  revolution  had  made  it  impossible  for  the  railroad  to  receive 
any  benefit  during  the  months  of  June,  July,  and  August.  It  was  there 
stated  that  in  September  there  was  a  suspension  of  hostilities  and  there 
were  some  receipts  ;  but  that  the  new  revolution  broke  out  September 
27,  since  which  time  the  traffic  had  ceased.  The  use  of  the  steamer 
plying  between  Santa  Bárbara  and  Maracaibo  had  terminated, 
because  of  the  order  of  the  customs  ofiicer  forbidding  its  use  and  of  the 
confirmation  of  the  same  by  the  president  of  the  State. 

The  situation  is  there  summarized  by  Mr.  Simon  as  follows: 

1.  It  is  not  possible  for  the  exploitation  to  gain  any  receipts  since  the  revolutionists  are 
masters;  and  up  to  this  day,  October  10,  there  is  not  hope  that  the  Government  can  retake 
this  city. 

2.  The  Venezuelan  Government  can  not  pay  the  company  any  of  its  debts  nor  even  give  it 
an  account  nor  make  any  promises  for  the  future. 

3.  The  company  has  no  longer  any  resources,  having  exhausted  everything  by  which  it 
may  meet  expenses  of  the  line,  while  it  has  made  no  receipts  l>ecause  of  the  frequent  revo- 
lutions. 

Considering  that  this  state  of  affairs  has  caused  it  prejudices  and  enormous  damages,  and 
that  if  it  continued  its  expenses  it  would  be  led  into  bankruptcy,  the  company  sees  it.self 
because  oí  force  majeure  obliged  to  suspend  the  exploitation  of  its  line  and  its  steamers  until 
a  settlement  may  be  made  with  the  national  Government  of  the  United  States  of  Venezuela; 
that  the  company  does  not  abandon  its  right  upon  the  concession  of  the  said  railroad  from 
Santa  Bárbara  to  La  Vigia. 


438       FRENCH    COMPANY    OF    VENEZUELAN    RAILROADS    CASE. 

October  22,  1899,  by  communication  of  Mr.  Simon  to  the  company 
at  Paris  it  is  learned  that  the  archives  and  records  of  the  company  had 
been  locked  up  in  the  safes  and  a  detailed  inventory  had  been  given 
the  consular  agent  of  France  at  Maracaibo;  that  the  entire  personnel 
of  the  })oats  had  l^een  paid  and  discharged,  and  the  copy  of  the  notice 
to  the  public  wliicli  had  been  given  it  through  the  newspapers  was 
therein  remitted.     It  is  added  that — 

The  lack  of  income  during  more  than  four  months,  together  with  the  revolutions  and  lack 
of  payment  bj-  the  Government  of  its  obligations  to  the  company,  are  the  reasons  which 
lead  the  company  to  ask  for  a  settlement  with  the  national  Government  before  continuing 
anew  the  exploitation. 

It  appears  that  since  the  27th  of  September  the  railway  is  in  the  hands  of  the  insurrec- 
tionists, and  that  until  this  date,  October  12,  there  is  no  hope  that  the  Government  may 
recover  this  place. 

The  Government  of  France  through  its  foreign  office  directed  its 
consular  agent  at  Maracaibo  to  safeguard  the  interest  and  properties 
of  the; railroad  company  during  its  suspension  of  activities. 

December  2,  1899,  there  was  an  armed  conflict  on  the  shores  of  the 
bay  of  Maracaibo  between  the  forces  of  General  Castro  and  those  of 
General  Hernandez.  A  steamer  of  the  company,  the  San  Carlos  y 
Mérida,  was  lying  at  anchor  in  the  bay  and  the  armed  forces  were  so 
situated  toward  one  another  that  the  steamer  lay  in  their  line  of  fire; 
as  a  result  the  damage  to  the  hull  of  the  steamer  was  so  serious  that  it 
sank  during  the  afternoon  of  that  day.  These  facts  concerning  the 
steamer  are  taken  from  the  report  of  the  French  consular  agent  at 
Maracaibo  in  a  communication  made  b}^  liim  of  date  Decem- 
ber 30,  1899. 

January  2,  1900,  the  appraisers  specially  appointed  for  the  purpose 
of  estimating  the  damages  suffered  by  the  Santa  Barbara  while  in  the 
service  of  the  national  Government  made  their  report,  naming  these 
damages  at   10.000  bolivars. 

January  18,  1900,  the  French  Company  of  Venezuelan  Railroads 
addressed  the  minister  of  foreign  affairs  of  France  and  referred  to  its 
communication  of  the  previous  month  to  the  same  official  and  asserted 
a  claim  which  is  reproduced  in  the  additional  opinion  submitted  by 
the  honorable  commissioner  for  Venezuela  to  the  umpire  at  North- 
field,  Vt.,  February  13,  1905,"  and  it  need  not,  therefore,  be  repeated 
here. 

February  3, 1900,  the  railroad  company  addressed  itself  to  the  Presi- 
dent of  the  Republic  of  Venezuela,  informing  him  of  the  grave  dis- 
asters which  had  overtaken  the  company  and  declaring  that  any 
considerable  delay  in  the  settlement  of  the  sums  due  it  from  the 
national  Government   might  ])rove  fatal. 

January-  18,  1901,  the  French  Company  of  Venezuelan  Railroads. 
having  received  no  payment  from  the  respondent  Government  and 

a  Page  413. 


OPINION    OF   THE    UMPIRE.  439 

no  encouragement  that  payment  would  be  made,  came  to  believe 
that  its  efforts  were  forever  compromised,  and  it  then  presented  to 
the  French  minister  of  foreign  affairs  a  claim  for  18,000,000  francs, 
the  ensemble  of  the  losses  which  the  action  of  the  respondent  Govern- 
ment was  held  to  have  brought  upon  it.  To  this  was  added  the  serv- 
ice of  the  boats,  which  had  been  destroyed  or  injured,  and  a  part  of 
the  material  of  the  dredging  macliinc,  which  had  been  stolen,  making 
a  total  of  483,900  francs,  deduction  having  been  made  of  11,100  boli- 
vars, that  sum  being  the  price  for  which  the  Santa  Bárbara  and  the 
launch  had  been  sold.  This  claim  was  brought  to  the  iittention  of 
the  consul-general  of  Venezuela  at  Paris,  whose  response  was  that 
the  new  president  up  to  that  time  had  been  able  to  concern  himself 
only  with  matters  political  and  martial. 

It  is  claimed  on  the  part  of  the  company  that  in  March,  1901,  the 
respondent  Government  had  planned  to  cede  or  let  the  line  and  its 
accessories  to  a  Mr.  Bolaro,  and  to  that  end  had  appointed  a  com- 
mission for  making  estimates.  The  action  of  the  Government  met 
with  a  very  vigorous  protest  from  the  company,  and  if  results  were 
intended  there  were  none. 

In  behalf  of  the  company  there  is  also  presented  by  Coimselor 
Dacraigne  in  his  very  able  and  valuable  brief  the  claim  that  it  was 
ruined  at  the  hands  of  the  respondent  Government;  that  this  ruin 
was  practically  consummated  by  what  he  is  pleased  to  denominate 
the  culpable  removal  of  the  guaranty.  He  insists  that  the  exchange 
made  between  the  company  and  the  Government  was  without  any 
equivalent  and  was  brought  about  only  by  such  pressure  that  it  was 
invalid  and  should  be  declared  a  nullity.  He  í:1so  asserts  that  it 
should  be  declared  a  nullity  by  default  of  execution,  since  the  respond- 
ent Government  has  not  paid  the  arrears  of  the  bonds  which  it  has 
given  the  French  company  in  exchange  for  its  guaranty.  The 
respondent  Government,  as  the  essential  part  of  that  exchange,  was  to 
furnish  bonds  bearing  5  per  cent  interest,  the  bonds  having  no  other 
value  than  their  interest-bearing  qualities.  The  interest  not  being 
paid,  the  bonds  were  without  value;  hence  there  was,  in  fact,  no  con- 
sideration for  the  surrender  of  the  guaranty  by  the  Company,  and 
the  respondent  Government  having  thus  failed  to  perform  that  which 
was  essential  in  the  contract  for  the  surrender  of  the  guaranty,  tJti^ 
company  has  a  right  to  demand  the  rescission  of  that  portion  of  the 
convention  *t)f  1896.  He  includes  in  the  right  of  rescission  a  claim 
for  damages  in  behalf  of  the  company,  which  is  in  the  natuië'  of  à 
reimbursement  of  all  the  expenses  which  have  been  imposed  upon 
it,  with  interest  at  7  per  cent.  He  urges  that  the  guaranty  be  liqiai- 
dated  from  May  10,  1893,  up  to  the  date  of  this  award,  less  the  sun^ks 
paid  thereon,  with  a  charge  of  7  per  cent  interest  annually  for  the 
default.  The  claim  for  18,000,000  francs  is  presented  on  behalf  Of  the 
company  in  another  view.    The  reasons  given  are  that  thcTespohdent 


440       FRENCH    COMPANY    OF    VENEZUELAN    RAILROADS    CASE. 

Government  by  requisitioning  tlie  material  and  the  personnel  of 
the  company  deprived  it  of  its  rights  and  its  ])ri)perty.  The  Gov- 
ernment had  power  to  take  it,  but  it  is  equity  that  the  company  be 
reimbursed  for  it.  The  damage  thus  consummated  is  estimated  at 
the  ])rice  set  upon  it  by  the  Congress  of  Vene/Aiela  in  1891,  which, 
it  is  urged,  is  the  amount  of  the  claim  liere  presented. 

Summarized,  then,  the  claim  of  the  French  company,  as  presented 
by  its  counsel,  is  as  follows: 

1.  F'or  the  loss  of  its  line  the  sum  of  18,000.000  francs,  with  interest  at  7  per  cent  upon  the 
capital  of  1.5,(X)0,000. 

2.  For  the  loss  of  its  maritime  exploitation,  the  sum  of  4S;î,000  francs,  with  interest  at  7 
percent.     The  interest  on  both  of  these  items  should  be  reckoned  from  March  '2S,  1893. 

This  résumé  of  the  facts  appearing  in  this  chiim  and  forming  the 
body  of  it  is  perhaps  sufficient  to  make  intelligent  the  opinions  of  the 
honorable  commissioners,  and  later,  the  views  and  holdings  of  the 
umpire.  He  thinks  that  he  can  best  make  to  appear  the  divergent 
paths  by  w^hich  the  honorable  commissioners  approached  the  ques- 
tions involved  by  quoting  liberally  the  record  of  their  proceedings, 
which  is  as  follows: 

The  examination  of  the  claim  of  the  French  Company  of  Venezuelan  Railroads,  presented 
at  the  .sitting of  May  19  last,  and  amounting  to  the  sum  of  18,483,000  bolivars,  was  then  taken 
up. 

The  French  arbitratt)r  considering:  That  the  nonexecution  of  the  obligations  contracted  by 
the  Venezuelan  Government  with  the  company  and  the  nonpayment  of  sums  which  it  owed, 
from  the  fact  of  its  engagements  and  its  requisitions  carried  on,  have  placed  the  company  in 
the  imposibility  of  continuing  its  exploitation;  that  the  inspection  of  the  line,  of  the  material, 
and  of  the  buildings  demonstrates  clearly  that  the  company  had  not  recoiled  Ix-fore  anj* 
expense  to  a.ssure  in  excellent  condition  the  service  of  merchandise  and  travelers; 

That  the  examination  of  accounts  permits  to  establish  that  the  exploitation  would  have 
been  remunerative  in  .spite  of  the  obstacles  presented  by  the  civil  war  and  the  inclemencies 
of  the  climate  if  the  Venezuelan  Government  had  paid  over  the  amounts  due  from  it,  and 
that  consequently  by  the  act  of  the  Venezuelan  Government  the  company  has  lK>en  deprived 
of  the  legitimate  lienefits  which  it  had  the  right  to  hope  for; 

That  according  to  the  said  contract  the  Venezuelan  Government  having  accorded  a 
guaranty  of  7  per  cent  upon  a  kilometric  value  of  300,000  bolivai-s,  has  itself  iniplicity  recog- 
nized that  the  value  of  the  exploitation  wa.s  18,(XX),000  bolivans; 

That  the  Vene/u^iun  Government  seems  to  have  had  the  intention  to  amiul  the  contract 
and  to  accord  the  concession  to  a  new  enterprise; 

That  the  company's  claim  for  indemnity  for  the  damages  suffered  by  its  maritime  service 
from  Maracaibo  to  Santa  Barbara  is  perfectly  ju.stified; 

Decides  that  (he  Venezuelan  (rovernment  ought  to  pay  to  the  Fi-ench  Conijiany  i>f  Vene- 
zuelan Railroads  (he  .sum  of  18,483,000 bolivars  demanded  by  it,  on  coiiditiwii  (hat  (he  latter 
renounce  (he  concession  of  the  enterprise  and  abandon  (o  the  Venezuelan  (iovermnent  its 
line,  its  buildings  of  e.xploitatitin  and  habitation,  i(s  stores,  and  i(s  (erres(rial  and  mari(ime 
material  in  (lie  condiiion  in  which  they  are  found,  by  means  of  which  j)aym('n(,  renunciation, 
and  abandonmen(  the  two  parties  will  be  five  from  all  their  reciprocal  engagements  and  obli- 
gations. 

The  Veuezueian  arbitrator,  considering  on  (he  contrary: 

That  the  true  reasons  for  the  suspension  of  the  exploitation  of  (he  lino  l)y  (he  company 
ai'e  of  ocoop^c  ortler,  the  latter  having  been  led  (o  (ake  this  resolve  because  of  (he  lack  of 


OPINION    OF    THE    UMPIRE.  441 

traffic  due  to  the  troubled  state  of  the  country  and  by  tlic  impossibility  in  whidi  its  bad 
financial  position  liad  placed  it  to  obtain  new  funds  necessary  to  make  repairs  for  damages 
caused  by  the  inclemency  of  the  weather  to  a  line  established  under  unfavorahie  conditions; 

That  the  Venezuelan  Government  could  be  held  responsible  neither  for  damages  caused 
to  the  material  of  the  exploitation  by  a  voluntary  abandonment  nor  for  those  suffered  from 
tiie  fact  of  the  troubled  condition  of  the  country  or  of  accidents  of  war; 

That  the  arrangement  entered  into  by  the  company  with  the  Venezuelan  Government  on 
the  subject  of  the  guaranty  stipulated  in  the  contract  has  been  entirely  carried  out  and  that 
the  company  has  received  the  sums  accruing  from  the  sale  of  tiie  bonds  which  have  been 
remitted  to  it  in  execution  of  the  said  arrangement; 

That  the  Venezuelan  Government  has  never  refused  to  reimburse  the  company  for  the 
requisitions  and  damages  caused  by  them  to  the  material,  and  that  the  impossibility  in 
which  it  finds  itself  of  making  this  reimbursement  as  the  result  of  the  penury  of  the  treasury 
in  the  course  of  the  civil  war  obliges  it  only  to  pay  interest  after  demand; 

Decides  that  the  claim  of  the  company  is  without  foundation. 

It  recognizes  only  the  right  to  an  indemnity  of  10,000  liolivars  ^or  damages  done  to  their 
steamer  Santa  Barbara  during  the  time  when  it  was  requisitioned,  and  reserved  for  it  the 
privilege  of  claiming  from  the  Venezuelan  Government  by  presenting  the  necessary  justifi- 
cations, the  sums  due  for  the  requisitions  with  interest  corresponding.  It  etjually  reserves 
the  right  of  the  Venezuelan  Government  for  the  fact  of  the  abandonment  of  the  exploitation. 

Thus  disagreeing,  the  claim  was  presented  to  the  umpire  at  a  sitting 
of  the  honorable  commission  held  at  Nortlifield,  Vt.,  February  14, 
1905. 

During  the  sitting  of  the  honorable  commission  at  Caracas  and  on 
August  28,  1903,  the  honorable  commissioner  for  Venezuela  presented 
an  able  memoir  or  opinion  relating  to  this  case,  giving  the  reasons  of 
fact  and  equit}'  which  prevented  him  from  allowing  any  of  the  claim 
except  the  sum  of  10,000  bolivars  for  the  appraised  injury  done  the 
steamer  Santa  Bárbara  while  in  the  service  of  the  respondent  Govern- 
ment. Many  of  the  facts  brought  out  in  his  opinion  are  not  repeated 
in  the  statement  of  facts  preceding,  as  reference  may  be  had  to  them 
as  thus  set  out  in  the  opinion  of  the  said  honorable  commissioner. 
The  memoir  has  been  of  valued  service  to  the  umpire. 

September  13,  1904,  at  Paris,  the  honorable  commissioner  for 
France  wTote  a  memoir  or  opinion  in  regard  to  this  claim  for  the  con- 
sideration of  the  umpire,  in  which  he  reviewed  the  memoir  or  opinion 
of  the  honorable  commissioner  for  Venezuela  and  wherein  he  gave  more 
in  detail  than  is  set  out  in  the  records  of  the  proceedings  at  Caracas, 
the  belief  which  he  entertained  in  reference  to  this  claim  and  his 
inability  to  accede  to  the  position  of  his  honorable  colleague.  It  has 
been  of  great  value  to  the  umpire  in  his  study  of  the  claim.  The 
services  of  the  eminent  counsel  of  the  company,  ^Ir.  Dacraigne,  have 
been  of  large  value  in  placing  before  the  umpire  in  concrete  form  the 
facts  of  the  case  and  their  bearing  upon  the  question  in  issue.  Follow- 
ing the  brief  of  Mr.  Dacraigne  is  an  additional  opinion  by  the  honor- 
able commissioner  for  Venezuela,  in  which  he  reviews  the  utterances 
of  his  honored  colleague  and  the  arguments  of  the  company's  leameii 
counsel. 


442       FRKNCH   COMPANY    OF    VENEZUELAN    RAILROADS    CASE. 

He  also  brings  to  the  attention  of  the  umpire  the  contents  of  the 
dossier,  réquisitions,  jacket  Xo.  11,  which,  among  other  things,  con- 
tains the  required  proofs  from  the  company  concerning  its  claims 
against  the  respondent  Government  for  requisitions,  transportation 
of  troops  and  material,  and  other  services  rendered  the  responilent 
Government  by  the  company  after  December  31,  1895,  the  date  of 
the  last  settlement.  As  the  honorable  commissioner  for  Venezuela 
does  not  (juestion,  but,  on  the  contrary,  ñdly  accepts  the  evidential 
force  of  the  proofs  thus  adduced,  they  were  not  earlier  brought  into 
the  statement  of  tliis  case  and  are  not  here  brought  forward,  except  to 
name  the  annual  balances,  the  total,  and  the  conclusion  and  the  allow- 
ance which  are  made  by  the  honorable  commissioner  aforesaid. 

The  dates  and  respective  balances  are  the  followmg,  as  shown  by  the  examination  I  have 

made  of  the  bills  in  the  record  of  the  case  : 

Bolivars. 

Balance  approved  by  the  legislature  of  the  State  of  Zulla,  February  27,  1894. .  2,  994.  85 

Balance  approved  by  the  legislature  of  the  State  of  Zulia,  January  23,  189.5. .  6,  434.  60 

Invoice  as  per  statement  up  to  December  31,  1897 15,  443.  60 

Invoice,  etc.,  to  May  30,  1898 3,886.00 

Invoice,  etc.,  to  October  30,  1898 34,  618.  90 

Invoice,  etc.,  to  March  3,  1898 6,  532.  00 

Invoice,  etc.,  to  April  6,  1899 9, 047.  00 

Invoice,  etc.,  to  September  30,  1899 114,  679.  00 

Total 193. 635. 95 

An  estimate  of  the  interest  on  the  several  balances  from  their  respective  dates  until  that 
when  the  company  may  probably  come  into  possession  of  the  funds  by  virtue  of  the  execu- 
tion of  the  sentence  which  may  be  finally  passed,  a  lapse  of  time  which  I  believe  to  be  reason- 
ably within  three  months,  taking  into  consideration  any  inevitable  delay,  will  show  that  the 
company  in  this  regard  is  entitled  to  the  sum  of  36,000  bolivars. 

Between  the  amount  of  193,635.  95  bolivars,  which  is  estabHshed  by  the  company's  state- 
ments, and  that  of  203,529.70  bolivars,  balance  in  the  company's  statement  of  December  31, 
1899,  as  due  by  the  Venezuelan  Government  at  that  time,  as  showoi  in  the  report  of  the  board 
of  managers  to  the  stockholders  in  the  company  to  which  I  have  made  reference  at  the  con- 
clusion of  my  opinion  of  August  28,  1903,  there  is  a  difference  of  10,393.75  bolivars,  to  which 
I  find  no  other  explanation  in  its  support  than  that  it  represents  the  price  t  he  company  has 
charged  the  Government  of  Venezuela  for  the  service  of  the  steamer  Santa  Bárbara  during 
the  days  intervening  between  September  30, 1899,  and  the  end  of  October  of  tiie  same  year, 
when  it  appears  the  steamer  was  returned  to  the  company  after  having  taken  to  the  island  of 
Cura(,ao  Doctor  Andrade,  the  president  of  the  State  after  the  so-called  liberal  (restaura- 
dora) revolution.  Such  amount  even  if  it  does  not  appear  in  a  specified  form,  as  it  shoukl  do, 
I  deem  to  be  a  fair  compcn.sation  for  the  services  rendered  by  tiie  steamer  Santa  liarhara  to 
the  local  authorities  during  the  montli  of  October,  as  according  to  docmnents  in  the  ca.se  the 
company  had  suspended  since  the  12th  of  the  same  month  all  operations  in  its  railroad  and 
steamer  service,  so  that  there  were  no  expenses  for  maintenance  of  the  serAice.  On  the 
aforesaid  amount,  which  I  recognize  as  also  due  by  the  Government  of  Venezuela,  interest  at 
the  rate  of  3  per  cent  should  be  added  from  October  ;iO,  1899,  to  the  date  of  the  execution  of 
tiie  .sentence  as  aforesaid,  .so  that  the  amount  of  the  indenmity  increa.ses  to  the  sum  of 
1,767  Ijolivars. 

As  the  honorable  commissioner  for  France,  in  his  supplementary 
statement  made  at  Northfield,  Vt.,  on  February  14,  1905,"  reviews 

o  Pp.  425-428. 


OPINION    OF   THE    UMPIRE.  443 

this  additional  opinion  of  his  colleague,  Doctor  Paúl,  and  does  not 
suggest  any  error  in  the  figures  presented  by  him  as  above  set  out, 
the  umpire  has  accepted  them  without  careftilly  stud\àng  the  original 
proofs  and  has  adopted  them  as  a  basis  upon  which  that  feature  of 
the  case  can  safely  rest. 

The  French  Company  of  Venezuelan  Railroads  contends  for  an 
allowance  of  18,483,000  ft-ancs,  (a)  on  the  basis  that  the  Venezuelan 
Government  is  responsible  for  the  ruin  of  the  company  and  that  in 
equity  this  responsibility  carries  with  it  the  rescission  of  the  contracts 
signed  between  the  said  company  and  the  respondent  Government,  as 
stated  in  the  first  paragraph  of  the  opinion  of  the  honorable  commis- 
sioner for  France;  (h)  on  the  basis  that  the  French  Company  of  Vene- 
zuelan Railroads  renounces  the  concession  of  the  enterprise  and 
abandons  to  the  Venezuelan  Government  its  line,  its  buildings  of 
exploitation  and  habitation,  its  stores,  and  its  terrestrial  and  maritime 
material  m  the  condition  in  which  they  are  found  by  means  of  which — 
payment  on  the  one  hand,  renunciation  and  abandonment  on  the 
other — the  two  parties  will  perform  all  their  reciprocal  obligations 
and  engagements,  as  stated  in  the  record  of  the  proceedings  of  the 
honorable  commission  at  Caracas  in  defining  the  position  of  the 
honorable  commissioner  for  France  in  regard  to  the  said  claim. 
These  two  statements  of  the  claim,  although  differing  in  form,  are 
understood  by  the  umpire  and  will  be  treated  by  him  as  in  essence  one 
and  the  same. 

In  event  of  failing  to  impress  this  view  upon  the  honorable  commis- 
sion the  company  asks  for  a  large  allowance  in  the  way  of  deferred 
guaranties  and  other  losses,  together  with  an  allowance  of  the  sums 
approved  and  accepted  by  the  honorable  commissioner  for  Venezuela. 
In  order  to  reach  the  consideration  of  these  deferred  guaranties,  it 
urges  upon  the  honorable  commission  the  duty  to  declare  that  portion 
of  the  convention  of  April  18,  1896,  which  refers  to  the  redemption  of 
the  guaranty  to  be  null  and  void,  because  it  was  obtained  in  a  manner 
so  conscienceless  that  it  can  not  be  sustained  in  the  forum  of  equity. 
If  this  view  is  upheld,  the  honorable  commission  is  asked  to  pass  in 
detail  upon  the  elements  composing  this  claim. 

To  take  these  several  propositions  in  their  order,  it  becomes  neces- 
sary to  consider  first  the  claim  of  18,483,000  francs,  which  is  the  sum 
demanded  provided  tñe  umpire  decides  in  favor  of  the  rescission  of  the 
contract. 

y  It  would  seem  to  the  umpire  that  the  question  first  occurring  is  one 
of  jurisdiction — in  other  words,  of  competency.  For  however  deeply 
the  sjmipathies  of  the  trier  may  be  stirred  in  behalf  of  those  who  have 
bravely  struggled  and  who  have  seriously  lost  there  is  an  imperative 
duty  whicn  is  primary.  That  duty  is  to  determine  the  limits  which 
circumscribe  him  and  keep  him  witliin  the  set  and  required  bounds. 


444       FBENCH    COMPANY    OF    VENEZUELAN    RAILROADS    CASE. 

Tlie  limits  of  this  honorable  commission  are  found  and  only  found 
in  the  instrument  which  created  it,  the  protoccil  of  Fel)ruary  19,  1902. 
An  arbitral  tribunal  is  one  of  lar^e  and  exclusive  powers  within  its 
prescribed  limits,  but  it  is  as  impotent  as  a  morning  mist  when  it  is 
outside  these  limits.  A  reference  to  the  convention  which  created 
this  commission  will  disclose  its  purpose  and  purview. 

Article  I  declares  : 

That  the  first  two  arbitrators  shall  meet  *  *  *  for  the  purpose  of  examining  in  eon- 
(^ert  the  demands  for  indemnity  presented  by  Frenchmen  for  damages  sustained  in  Venezuela, 
etc. 

Article  II  provides  that  : 

Demands  for  indemnities  other  than  those  which  are  aimed  at  in  Article  I  or  based  upon 
facts  anterior  to  the  23d  of  May,  1899,  will  be  examined  in  concert  by,  etc. 

Article  II,  then,  would  permit  this  liberal  reading: 

The  arbitral  tribunal  here  constituted  shall  meet  for  the  purpcse  of  examining  in  concert 
the  demands  fur  indemnity  presented  by  Frenchmen  for  damages  sustained  in  Venezuela, 
but  exclusive  of  those  which  grew  out  of  the  "  insurrection  events"  of  1892. 

The  sole  scope  and  sweep  of  the  authority  given  is  to  provide  indem- 
nities for  damages  suffered  by  Frenchmen  in  Venezuela.  It  is  not 
defined  but  it  is  assumed  that  its  methods  of  procedure  will  not  con- 
travene the  general  and  established  principles  of  the  law  of  nations, 
nor  its  awards  be  opposed  to  justice  and  equity.  This  much  can  be 
assumed,  but  to  assume  that  it  has  power  to  revoke,  rescind,  modify, 
or  limit  the  terms  of  a  contract,  even  so  much  as  by  a  hair's  breadth,  is 
impossible.  It  was  created  for  no  such  purpose;  it  was  endowed  with 
no  such  powers.  So  far  as  a  Frenchman  has  suffered  damages  in 
Venezuela  for  which  Venezuela  is  responsible,  the  indemnities  may  be 
stated  and  the  decision  be  final.  The  arbitral  tribunal  thus  consti- 
tuted may,  as  a  means  to  the  end  provided,  ascertain  and  declare  the 
responsibility  of  Venezuela,  it  may  pass  upon  its  own  jurisdiction 
within  the  scope  of  its  charter,  but  it  can  not  step  in  the  least  outside 
the  path  prepared  for  it,  which  is  and  only  is  the  path  which  leads 
from  damages  to  indemnities.  If  the  French  Company  of  Venezuelan 
Railroads  and  the  respondent  Government  did  but  agree  that  rescis- 
sion should  be  had,  or  that  abandonment  should  be  made  of  the  con- 
cessions and  the  properties  of  the  company  to  Venezuela,  then  this 
honorable  commission  might  be  considereil  comj)etent  to  pass  upon 
and  establish  the  indemnities  thus  required,  (otherwise  there  is 
incompetency  absolute  and  entire.  This  commission  is  not  only  des- 
titute of  primary  authority  which  is  enough,  i)ut  it  is  equally  desti- 
tute of  all  capacity  to  compel  the  parties  to  carry  into  effect  any  such 
award  were  it  made,  which  is  more. 

The  contracts  in  issue  were  mutual  and  n>cij)rocal  and  neither  ¡larty 
thereto  can  make  abandonment  thereof  without  the  consent  of  the 


OPINION    OF   THE    UMPIRE.  445 

other.  The  United  States  of  Venezuela  does  not  consent.  Therefore 
the  French  Company  of  Venezuelan  Railroads  can  not,  by  right, 
abandon  its  contracts  or  its  properties. 

If  it  be  held  that  the  respondent  Government  has  wrought  the  utter 
ruin  of  the  company  and  that  this  was  done  in  a  manner  and  by  means 
which  charge  upon  the  nation  the  full  measure  of  responsibility,  then 
there  is  a  case  for  damages  only,  and  the  sum  awarded  might  be — it  is 
not  said  would  be — the  sum  of  18,483,000  francs,  the  amount  claimed. 
But  it  is  always  and  only  on  the  basis  of  indemnities  for  damages  that 
this  honorable  commission  has  jurisdiction,  and  it  is  utterly  powerless, 
even  for  good  cause,  to  decree  an  unaccepted  and  unacceptable  aban- 
donment by  either  party  of  a  mutual  and  reciprocal  contract,  or  to 
award  an  act  of  rescission  which  has  not,  in  effect,  previously  taken 
place. 

The  umpire  finds  ample  warrant  for  his  conclusions  regarding  his 
powers  in  the  authorities  to  which  he  makes  reference,  and  that  their 
pertinency  ma}'  at  once  appear  he  quotes  briefly: 

The  authority  of  the  arbitrator  *  *  *  jg  derived  exclusively  from  the  submission, 
and  every  part  of  it,  as  well  as  the  documents  referred  to  therein,  must  be  taken  into  con- 
sideration in  order  to  determine  the  extent  of  such  authority.  2  Am.  and  Eng.  Encycl. 
of  Law,  669  {2d  ed.) 

It  has  been  held  that  the  arbitrator  can  consider  only  the  precise  question  submitted  to 
him,  that  he  can  neither  modify  the  question  nor  add  other  controversies  to  it,  no  matter 
how  cognate  to  the  matter  submitted.     Id.,  671. 

However,  it  is  within  the  arbitrator's  power  to  award  in  regard  to  all  matters  which  are 
necessarily  or  properly  incidental  to,  or  included  within,  the  terms  of  the  submission,  etc.    Id. 

But  he  can  not  lawfully  go  beyond  the  terms  of  the  submission  in  order  to  do  general 
justice.     Id.,  672. 

For  this  honorable  commission  to  order  something  to  be  done  which 
would  cause  damage  to  the  party  obeying  the  order  and  then  to  award 
damages  therefor  would  be  opposed  to  the  terms  of  the  convention. 
It  would  be  an  independent  act  posterior  to  the  convention,  and  were 
kthis  to  be  done  by  the  umpire  it  would  require  a  payment  by  Vene- 
zuela to  the  claimant  company  for  damages  in  fact  sufiFered  in  the 
United  States  of  America  at  the  hands  of  the  umpire. 

A  submission  of  all  matters  in  difference  means,  as  a  rule,  all  matters  in  difference  doum 
to  the  date  of  the  submission  but  not  after.     Id.,  61Ù. 

The  umpire  can  not  entirely  ignore  the  restrictive  features  of  the 
contt««t  between  the  claimant  company  and  the  respondent  Govem- 
me^,,  which  in  terms  and  in  fact  strictly  required  and  still  requires 
that  nil  doubts  and  controversies  arising  from  that  contract  should  be 
resoKtid  by  the  competent  tribunals  of  the  respondent  Government. 
Certainly  to  consider  and  determine  the  question  of  its  rescission  is 
tfaeaiofli  senous  doubt,  the  most  important  controversy,  which  could 
grow  out  el  «r  arise  from  the  contract  in  question.  A  claim  for  Ativa- 
*f»e  may  be  regarded  as  ulterior  to  the  contract,  especially  where  the 


4-l()       FRENCH    COMPANY    OF   VENEZUELAN    RAILROADS    CASE. 

damage  has  accrued  from  the  operation  of  the  parties  under  the  con- 
tract, but  the  question  of  its  rescission  is  an  entirely  different  propo- 
sition. The  unrestricted  agreement  to  submit  to  an  arbitral  tribunal 
the  question  of  damages  suffered  by  Frenchmen  in  Venezuela  may 
properly  be  considereci,  if  necessars',  as  equivalent  to  a  suspension  of 
the  provision  in  the  contract,  were  the  damages  claimed  to  be  such  as 
arose  or  grew  out  of  the  contract;  but  the  agreement  to  submit  a 
question  of  damages  arising  through  operations  performed  under  a 
contract,  in  no  sense  suggests  a  purpose  to  arm  that  tn])unal  with 
plenarj^  power  to  consider  and  settle  the  question  involved  hi  the 
rescission  of  a  contract,  and  therefore  does  not  suggest  an  intent  on 
the  part  of  the  high  contracting  powers  to  ask  on  the  one  hand  or  to 
grant  on  the  other  the  suspension  of  the  restrictive  features  referred 
to,  wliich  are  contained  in  said  contract.  What  is  here  said  concern- 
ing the  matter  of  rescission  applies  váth.  equal  force  to  the  matter  of 
abandonment.  It  is  therefore  the  deliberate  and  settled  judgment 
of  the  umpire  that  he  can  not  determine  this  claim  on  the  basis  of  a 
declared  and  directed  rescission  or  of  abandonment,  and  can  only 
decide  the  amount  of  the  award,  this  to  depend  upon  the  ordmary 
bases  of  damages  which  have  been  suffered  in  Venezuela  by  the  French 
Company  of  Venezuelan  Railroads  at  the  hands  of  those  for  whom  the 
respondent  Government  is  responsible. 

By  the  claimant  company  the  redemption  of  the  guaranty  as 
settled  by  the  compact  of  April  16,  1896,  is  declared  void  in  equity, 
(a)  for  want  of  adequate  consideration  and  as  being  made  agamst  the 
desire  of  the  company  and  under  the  irresistible  compulsion  of  circum- 
stances which  were  availed  of  b^^the  respondent  Government  to  drive 
a  bargain  so  hard  and  so  unconscionable  that  it  should  be  set  aside  by 
this  tribunal;  (h)  as  a  default  of  the  Government  in  neglecting  to  meet 
its  obligations  of  interest  as  they  fell  due  upon  the  bonds  wliich  wore 
given  to  redeem  such  guaranty,  being  a  total  failure  to  comply  \ñth 
and  carry  out  the  terms  of  that  agreement  which  renders  the  agree- 
ment itself  nugatory  and  void;  and  for  these  reasons  the  rescission 
thereof  should  be  declared  by  this  honorable  commission. 

The  agreement  effected  to  redeem  this  guaranty  of  the  French  Com- 
pany of  Venezuelan  Railroads  was  only  a  part  of  a  gon(>ral  ]>lan  intro- 
duced by  the  United  States  of  Venezuela  in  1896,  to  bo  made  appli- 
cable to  all  similar  enterprises  wherever  located  in  that  country  imd 
by  whomsoever  ex])loited.  To  this  end  it  had  arranginl  with  the 
noted  and  conservative  German  house,  the  Disconto  Gesollschaft,  to 
float  a  loan  of  50,000,000  bolivars,  secured  upon  the  custom-houses 
of  the  nation  and  l)earing  5  ])er  cent  interest  annually,  the  proceeds  of 
said  funds  to  be  devoted  to  the  ])uri)ose  named. 

It  was  accepted  generally  by  the  different  guaranteed  enterprises, . 
the  claimant  company  being  one  of  the  several.  „ 


OPINION    OF    THE    UMPIRE.  447 

Examination  of  the  reports  made  hj  the  company  to  the  share- 
holders at  its  annual  meetings  for  the  years  1894,  1895,  and  1896 
shows  a  successive  and  continuing  ability  on  the  part  of  the  claim- 
ant company  to  raise  money  by  loans.  June  27,  1896,  was  noteworthy 
in  this  regard,  since  at  this  annual  meeting  successfid  ])rovision  was 
made  for  floating  a  loan  of  1,300,000  francs.  In  1895,  the  year  pre- 
ceding the  redemption  of  the  guaranty,  there  was  raised  by  loan 
200,000  francs,  and  in  the  3'ear  1897,  a  year  and  more  succeeling  the 
settlement,  there  was  negotiated  a  loan  of  1,500,000  francs.  Hence 
it  was  not  an  overwhelming  financial  necessity  whicli  confronted  the 
company  nor  an  utter  inability  to  obtain  money  otherwise  which 
compelleil  the  acceptance  of  the  offered  redemption. 

The  redemption  of  the  guaranty  on  the  terms  provided  did  not 
mean,  on  the  part  of  the  claimant  company,  the  relinquishment  of 
1,260,000  francs  annually  for  the  sum  of  2,500,000  francs  in  han('. 
It  was  only  the  relinquishment  of  such  sum,  if  any,  as  might  remain 
when  the  net  annual  revenue  was  deducted  from  this  annual  guaranty. 

The  net  revenue  had  been  growing  for  the  years  prior  to  April  16, 
1896.  In  1894  it  was  72,332.15  francs;  in  1895,  101,676.97  francs. 
Both  parties  had  contemplated  and  apparently  believed  that  it  would 
finally  exceed  the  guaranty  and  had  provided  for  that  contingency, 
as  will  be  seen  by  reference  to  the  contracts  which  arranged  to  meet 
and  eventually  to  cancel  the  guaranty  which  had  theretofore  been 
paid,  directing  that  one-half  of  the  net  annual  revenue  in  excess  of 
1,260,000  francs  be  used  in  payment,  and  also  agreeing  that  after  the 
said  advances  had  been  canceled  fidly  the  respondent  Government 
should  continue  to  enjoy  20  per  cent  of  such  excess  in  perpetuity. 
By  tliis  redemption  the  right  of  Venezuela  to  participate  in  any  way 
in  the  net  profits  of  the  company  was  canceled.  That  this  right 
was  considered  as  of  some  value  is  evident  or  it  never  woidd  have 
been  placed  in  the  contract.  In  fact,  by  its  terms  the  annual  giiar- 
anty  was  only  in  advance,  an  indebtedness  of  a  peculiar  character, 
payable  only  in  certain  contingencies  and  in  a  particular  way,  but  still 
it  was  an  indebtedness.  By  the  agreement  constituting  the  redemp- 
tion these  conditions  were  all  changed,  to  the  effect  that  the  arrears 
then  provided  for  and  the  2,500,000  francs  then  paid  were  not  debt 
producing,  but  debt  reducing.  They  were  gifts,  purely  and  simplj', 
so  far  as  any  duty  of  repayment  was  concerned.  In  another  sense 
they  were  not  gifts.  They  were  the  nation's  estimate  of  the  value 
of  the  railroad  and  the  steamboats  to  its  commerce  and  to  its  agri- 
culture, also  to  the  means  of  communication  between  different  parts 
of  the  country.  The  transaction  itself  was  open,  the  negotiations 
lengthy,  the  time  for  reflection  ample.  The  cooperation  of  the  direc- 
tors of  the  company  and  of  the  representatives  of  the  creditors  was 
solicited  and  received,  and  all  was  done  with  due  deliberation  imder 


448       FRENCH    COMPANY    OF    VENEZUELAN    RAILROADS    CASE. 

circumstances  which  permitted  entire  freedom  of  will  and  of  action. 
The  approval  just  mentioned  took  recorded  form  on  June  27,  1896, 
after  a  lapse  of  more  than  two  months  and  after  a  ñdl  and  explicit 
report  of  the  action  taken,  with  the  reasons  therefor  fully  set  forth. 
It  was  referred  to  approvingly  at  the  annual  meeting  of  1897,  and  on 
June  30,1898,  two  years  and  two  months  after  the  agreement  of  redemp- 
tion was  made,  the  bonds  which  had  been  issued  in  accordance  with 
that  agreement  were  appropriated  by  the  deliberate  action  of  the 
company  to  the  payment  of  a  special  indebtedness.  They  were 
accepted  by  tw^o  of  the  vigilant  and  sagacious  financial  houses  of 
France  in  place  of  the  obligations  of  the  company.  There  are  appar- 
ent none  of  the  features  which  accompany  and  signalize  bargains 
which  the  courts  undertake  to  set  aside.  The  freedom  of  contracts 
is  one  of  the  bulwarks  of  business,  and  courts  are  loath  to  interfere 
where  a  contract  is  executed  and  where  are  lacking  the  elements  of 
fraud  or  mistake,  and  where  it  rests  upon  the  mutual  assent  of  parties 
intelligent,  competent,  and  free  to  contract. 

It  is  elementary  law  that  every  person  of  sound  and  disposing  mind  and  under  no  legal 
disability  has  the  absolute  right  of  disposing  of  his  property  in  any  way  not  expressly  or 
impliedly  forbidden  by  law  and  to  anj-  person  legally  capable  of  taking  it. 

Hence,  where  a  person  competent  to  convej*  has  fairly  and  knowingly  made  a  complete 
conveyance  of  his  land  to  another  person  competent  to  receive  it,  and  no  fraud,  accident, 
mistake,  or  undue  influence  was  involved  in  the  transaction,  the  fact  that  the  conveyance 
was  wholly  voluntary  and  without  consideration  constitutes  no  ground  for  rescinding  the 
conveyance  and  canceling  the  deed;  and  in  such  a  case  the  fact  that  the  disposition  of  the 
property  was  unwise,  improvident,  or  absurd  will  not  be  considered  by  a  court  of  equity. 
2Jf  Am.  and  Eng.  Encyd.  of  Law,  611  {2d  éd.). 

Where  the  contract  has  been  fully  and  voluntarily  performed  before  relief  by  rescission  is 
sought,  it  is  only  where  the  most  forceful  reasons  exist  for  granting  equitable  relief  that  a 
court  of  equity  or  a  court  exercising  equitable  powers  will  intei-pose  to  decree  the  rescission 
of  the  contract,  etc.  Indeed  it  has  been  frequently  held  that  nothing  short  of  actual  fraud 
or  mistake  will  justif}»^  the  court  in  granting  rescission  of  an  executed  contract.     Id.,  IH2. 

Although  the  consideration  of  simple  contracts  and  of  certain  forms  of  real  conveyances 
must  be  valuable,  it  is  not  essential  that  the  consideration  should  be  adequate  in  point  of 
value.  Tlie  law  does  not  weigh  the  quantum  of  consideration,  deeming  it  unwist>  to  interfere 
with  the  facility  of  contracting  and  the  free  exercise  of  the  judgment  and  will  of  the  parties, 
but  allows  them  to  be  the  sole  judges  of  the  benefits  to  be  derived  from  their  bargains,  pro- 
vided there  be  no  incompetency  to  contract  and  the  agreement  violates  no  mle  of  law.  i>  Am. 
and  Eng.  Encyd.  of  Law,  69JÍ  {2d  éd.). 

The  final  appropriation  and  use  of  the  redemption  fund  after  such 
length  of  time,  after  such  opportunity  for  observation,  investigation, 
and  reflection,  without  a  murmur  of  dissent  in  the  meanwhile  or  a 
re(iuest  for  rescission  or  an  offer  to  restore  the  statu  quo  is  too  ]iali)ably 
a  solemn  acceptance  to  admit  of  ik)ubt,  while  the  absorption  of  the 
funds  precludes  return.  There  is  also  no  offer  to  restore.  If  there 
were  such  ofl'er  this  honorable  commission  has  no  j)ower  to  compel  its 
acce])tance. 


OPINION    OF    THE    UMPIRE.  449 

Moreover,  in  order  to  render  valid  the  compromise  of  a  claim,  it  is  not  essential  that  the 
matter  should  be  really  in  doubt.  It  is  sufiicient  if  the  parties  consider  it  so  far  doubtful  as 
to  make  it  the  subject  of  a  compromise.  6  Am.  and  Kruj.  Encycl.  of  Law,  713  (2d  éd.),  citing 
Union  -Bank  v.  Geary,  5  Peters  (U.  S.  Sup.  Ct.),  99. 

The  parties  to  a  contract  may  at  any  time  rescind  it,  either  in  whole  or  in  part,  by  mutual 
consent,  and  the  suiTender  of  their  mutual  rights  is  a  sufiicient  consideration.  6  Am.  and 
Eng.  Encycl.  of  Law,  729  {2d  éd.),  note. 

An  agreement  by  one  party  to  a  contract,  at  the  instance  of  the  otlier  party,  to  modify  its 
terms,  is  a  valuable  consideration.     Id.,  7,iS. 

A  prepayment  of  interest  before  it  is  due  is  a  valuable  consideration  for  an  agreement  to 
extend  the  time  of  payment.     (Summaiized.)     Id.,  704- 

It  is  a  valuable  consideration  if  the  promisee,  having  the  right  to  refuse  pennis.sion,  is 
moved  by  the  promise  to  allow  a  certain  thing  to  be  done.  The  question  is  not,  did  the 
promisor  derive  any  benefit  from  the  permission  or  did  the  promisee  suffer  any  detriment 
from  giving  it?  but  merely  was  it  something  the  latter  had  the  riglit  to  refuse. 

Consideration  arises  from  the  permission,  irrespective  of  the  benefits  derived  from  it.  Id., 
741. 

The  umpire  is  unable  to  accept  the  contention  of  the  claimant  com- 
pany that  the  respondent  Government  was  the  sole  cause  of  its  ruin. 
This  is  nowhere  asserted,  or  even  suggested,  by  its  agents  and  managers 
during  the  progress  of  the  events  which  culminated  in  its  suspension, 
nor  until  the  lapse  of  many  months  thereafter.  It  is  entirely  opposed 
to  the  expressions  of  Mr.  Reynaud,  of  the  administrative  board  of  the 
company,  in  his  careful  and  analytical  statement  of  the  claims  of  the 
company  on  February  3,  1900,  since  which  time  it  is  not  claimed  that 
there  is  to  be  found  any  direct  injury  received  fTom  the  respondent 
Government,  unless  it  occurs  in  its  delay  to  pay  its  debts.  The  claim 
then  put  forth  was  (a)  payment  of  300,000  francs  as  the  full  amount 
due  for  expenses  of  transportation  and  recpiisitions  on  account  and  by 
order  of  the  authorities  of  the  nation  and  the  States;  (b)  payment  of 
the  sum  of  250,000  francs,  estimated  as  the  minimum  amount  of  the 
indemnity  due  for  damages  which  had  been  occasioned  upon  its 
property;  (c)  the  sum  of  105,000  francs  a  month  on  account  from 
July  1,  1899,  to  indenmify  the  company  for  the  loss  which  it  had  suf- 
fered since  that  date  from  the  almost  absolute  suppression  of  its  trailic 
and  for  the  immobilization  of  its  railroad  and  boats.  This  sum  is 
obtained  by  taking  the  amount  originally  stipulated  as  an  annual 
guaranty,  viz,  126,000  francs,  and  dividing  it  by  12,  the  number  of 
months  in  a  year,  the  quotient  being  105,000  francs.  This  communi- 
cation from  its  authorized  agent  must  be  taken  as  the  voice  of  the 
company  speaking  its  honest  and  deliberate  convictions  and  asserting 
its  claims  in  their  most  broad  and  comprehensive  sense.  This  state- 
ment was  made  when  all  the  facts  were  fresh  in  the  minds  of  both 
parties  and  when  there  were  no  reasons  for  concealment,  reservation, 
or  dissimulation.  The  umpire  will  accept  it  as  the  maximum  of  the 
claimant  company's  demands  for  those  matters  which  had  occurred 
at  that  time.  He  will  allow  so  much  of  the  300,000  francs  as  he 
S.  Doc.  533,  59-1 29 


450       FRENCH    COMPANY    OF    VENEZUELAN    RAILROADS    CASE. 

ascertains  to  be  well  founded.  He  will  grant  so  much  of  the  250,000 
francs  as  is  detennined  to  exist  in  a  claim  properly  attributable  to  the 
respondent  Government.  He  will  allow  nothing  of  the  claim  for 
1Ü5,UUÜ  francs  a  month,  as  he  finds  no  lawful  responsibility  in  the 
respondent  Government.  It  can  not  be  charged  with  responsibility 
for  the  conditions  which  existed  in  1899,  prostrating  business,  par- 
alyzing trade  and  commerce,  and  annihilating  the  products  of  agricul- 
ture; nor  for  the  exhaustion  and  paralysis  which  followed;  nor  for  its 
inabihty  to  pay  its  just  debts;  nor  for  the  inability  of  the  company  to 
obtain  money  otherwise  and  elsewhere.  All  these  are  misfortunes 
incident  to  government,  to  business,  and  to  human  life.  They  do 
not  beget  claims  for  damages. 

The  claimant  company  was  compelled  by  force  majeure  to  desist 
from  its  exploitation  in  October,  1899;  the  respondent  Government, 
from  the  same  cause,  had  been  prevented  from  paying  its  indebtedness 
to  the  claimant  company.  The  umpire  finds  no  purpose  or  intent  on 
the  part  of  the  respondent  Government  to  harm  or  injure  the  claimant 
company  in  any  way  or  in  any  degree.  Its  acts  and  its  neglects  a\  ere 
caused  and  incited  by  entirely  difi'erent  reasons  and  motives.  Its 
first  duty  was  to  itself.  Its  own  preservation  was  paramount.  Its 
revenues  were  properly  devoted  to  that  end.  The  appeal  of  the  com- 
pany for  funds  came  to  an  empty  treasury,  or  to  one  only  adequate  to 
the  demands  of  the  war  budget.  When  the  respondent  Government 
used,  even  exclusively,  the  railroad  and  the  steamboats  it  was  not  out- 
side its  contractual  right  nor  beyond  its  privilege  and  the  company's 
duty  had  there  been  no  contract.  When  traffic  ceased  through  the 
confusion  and  havoc  of  war,  or  because  there  were  none  to  ride  and  no 
products  to  be  transported,  it  was  a  dire  calamity  to  the  country  and 
to  all  its  people  ;  but  it  was  a  part  of  the  assumed  risks  of  the  company 
when  it  entered  U])on  its  exploitation. 

When  revolution  laid  waste  both  country  and  village,  or  seized  the 
railroad  and  its  material,  or  placed  its  hands  upon  the  boats  and 
wrought  serious  injury  to  all,  it  is  regrettable,  deplorable,  but  it  is  not 
chargeable  upon  the  respondent  Government,  unless  the  revolution 
was  successful  and  unless  the  acts  were  such  as  to  charge  responsibility 
under  the  well-recognized  rules  of  public  law.  These  possible  dis- 
ordered conditions  of  a  country  are  all  discounted  in  advance  by  ()ne 
who  enters  it  for  recreation  or  business.  It  is  no  reflection  upon  the 
resj)ondent  Government  to  say  that  the  claimant  com]>any  must  have 
entered  upon  its  exj)loitation  in  full  view  of  the  possu)ility,  indeed, 
with  the  fair  probability,  that  its  enterprise  would  be  obstructed  occa- 
sionally by  insurgent  bands  and  revolutionary  forces  and  l)y  the 
incidents  and  conditions  naturally  resulting  therefrom. 

The  honorable  commissioner  for  Venezuela  allows,  as  has  already 
been  shown  in  this  opinion,  241,357.70  bolivars.     This  includes  interest 


OPINION    OF    THE    UMPIRE.  451 

on  the  annual  balances  appearing  in  tlie  claimant  conijiany's  state- 
ment to  the  national  and  sectional  governments,  also  interest  for  the 
use  of  the  steamer  Santa  Barbara. 

The  umpire  sees  no  reference  b}"  tlic  lu)nora})le  commissioner  in  his 
additional  opinion  to  the  appraised  damage  done  the  steamer  Santa 
Bárbara,  which  said  honorable  commissioner  allowed  in  his  original 
opinion.  The  umpire,  by  a  cursory  examination  of  the  vouchers 
which  support  the  claims  allowed  by  the  said  commissioner,  does  not 
find  that  it  is  included  therein.  Hence  the  umpire  concludes  that 
there  can  be  no  mistake  in  adding  tliat  sum,  with  interest  from  Octo- 
ber 1,  1899,  which  makes  an  amount  of  1 1,750  francs.  The  sinking  of 
the  steamer  San  Carlos  y  Mérida,  as  stated  by  the  consular  agent  of 
France,  was,  without  doubt,  an  accident  of  war.  No  circumstance  is 
suggested  which  takes  it  out  of  the  usual  rule  of  nonresponsibility  on 
the  part  of  the  respondent  Government,  and  hence  it  must  be  dis- 
allowed. 

The  injuries  done  the  railroad,  the  buildings  and  the  material,  by 
use  in  war,  must  have  been  considerable,  and  since  the  revolution  was 
successñd,  the  respondent  Government  is  properly  chargeable  for  its 
use  and  for  the  injuries  and  damages  which  resulted.  There  is  no 
question  as  to  the  liability  of  the  respondent  Government  for  the  nat- 
ural and  consequential  damages  which  resulted  to  the  railroad  proper- 
ties while  they  were  in  the  use  and  control  of  the  titular  Government. 
Hence  there  is  unquestioned  and  complete  responsibility  on  the  part 
of  the  respondent  Government  for  all  the  necessar}",  natural,  and  con- 
sequential injuries  which  resulted  to  the  railroad  and  its  properties 
when  used  by  either  the  revolutionary  or  the  governmental  forces.  The 
umpire  is  destitute  of  data  upon  which  he  can  safely  base  his  judgment 
as  regards  the  just  amount  of  that  damage,  but  that  it  is  considerable 
is  unquestionable. 

He  will  approach  the  subject,  however,  from  another  standpoint. 
It  is  not  right  that  the  claimant  company  be  paid  only  the  regular  one- 
half  rate  for  services  performed  at  such  times  and  under  such  circum- 
stances. There  is  no  clear  proof  just  how  much  this  service  was,  and 
any  conclusion  can  in  fact  be  only  conjectural  and  at  best  only 
approximate.  The  umpire  accepts  as  the  best  basis  obtainable  the 
last  item  of  charge,  viz,  114,679  bolivars.  He  assumes  that  this 
represented  the  usual  charge  to  the  Government  at  one-half  rate.  He 
considers  full  rate  as  none  too  much  and  he  adds  to  the  sum  allowed  by 
the  honorable  commissioner  for  Venezuela  1 14,679  francs  and  interest, 
wliich  he  reckons  at  20,069  francs,  making  in  all  134,748  francs. 
Wliere  the  respondent  Government  can  be  charged  with  no  other 
offense  than  a  neglec  t  to  pay  its  debts  through  inability  so  to  do,  no 
greater  responsibility  rests  upon  it  than  the  payment  of  interest  for  the 
delay  thus  caused.  Such  is  the  situation  in  this  case,  as  it  appears  to 
the  mnpire. 


452       FRENCH    COMPANY    OF    VENEZUELAN    RAILROADS    CASE. 

The  facts  brouo^ht  upon  the  record,  tlie  facts  placed  in  this  opinion, 
do  not  disclose  any  relation  of  the  respondent  Government  to  the 
claimant  company  wliich  makes  the  former  chargeable  financially  for 
the  ruin  of  the  latter;  and  the  award  can  not,  in  justi(  e  and  efjuity,  be 
placed  upon  any  such  basis.  Tiie  several  sums  allowed  for  the  differ- 
ent causes  mentioned  constitute  the  maximum  amount  which  can  be 
named  in  the  sentence.  The  atíf^rejíate  of  tliese  sums  is  387,875.70 
francs,  and  the  award  will  be  prepared  for  that  sum. 

NORTHFIELÜ,  July  SI,  1905. 


SUMMARY  OF  AWARDS  BY  UMPIRE. 


No. 


Claimants. 


Amount 
claimed. 


Bolivars. 

Heirs  of  Jules  Brun 500, 000. 00 

Frierdich  &  Co !  17(),080.10 

Ilei rs  of  Maninat '  2, 000, 000. 00 

Antoine  Fabiani 9, 509, 728 . 30 

iPieri  Dominique !  3, 370,000. 00\ 

^Pieri  Dominique  &  Co I  280,400.00J 

Heirs  of  Massiani I  728, 476. 48 

Company  General  of  the  Orinoco 5,616,098.62 

French  Company  of  Venezuelan  Railroads 1  18,483,000.00 


Amount 
awarded. 


Bolivars. 

100,000.00 
Dismi.ssed. 

100,000.00 
Dismissed. 

350,000.00 

Dismissed. 

2,408,563.35 

387,875.70 


453 


APPENDIX. 


OPINIONS    OF  COMMISSION   RENDERED    IN    CARACAS,  o 

[I'aris  Protocol.] 

LEDIT,  ST.  IVES,  FISCHER  &  CO.  CASE. 
Commi.s.sion  declared  without  jurisdiction  because  claims  aro.se  subsequent  to  May  23,  1899. 

Paul,  Commissioner: 

This  claim  arose  out  of  a  debt  by  the  Government  of  Venezuela  in  faver  of  Mr.  Domingo 
R.  Wetto,  a  tailor  domiciled  in  Caracas,  for  the  price  of  uniforms  for  the  national  army, 
which  debt  was  assigned  by  said  Mr.  Wetto  on  September  6,  1901,  to  the  iirm  of  Leduc, 
St.  Ives,  Fischer  &  Co.,  as  appears  by  a  document  authenticated  by  the  parochial  court 
of  this  city  on  the  23d  of  said  month  and  year. 

The  orders  of  payments  drawn  by  the  minister  of  war  and  marine  in  favor  of  Wetto  are 
dated  August  1,  September  12  and  14,  and  October  19,  1899. 

As  appears  from  the  dates  of  these  orders  they  are  all  subsequent  to  May  23,  1899,  and 
consequently  the  examination  of  this  claim  does  not  belong  to  this  commission,  in  conformity 
with  Article  II  of  the  protocol  of  Paris,  which  deteiTnines  its  jurisdiction,  wherefore  the 
Venezuelan  arbitrator  is  of  opinion  that  the  commission  shoidd  declare  itself  without 
jurisdiction  to  examine  it. 


ROGE   CASE. 
Damages  allowed  for  unlawful  imprisonment. 

Paúl,  Commissioner: 

From  the  documents  presented  following  the  facts  are  proven: 

That  Dr.  J.  M.  Aveledo,  as  attorney  of  Alfonso  Santerre  and  Carlos  Luciani,  on  the  17th 
of  October,  1888,  before  the  court  of  the  iirst  instance,  of  the  fii-st  judicial  circuit  of  Ciudad 
Bolívar,  instituted  a  suit  for  libel  against  Ernesto  Rogé,  superintendent  of  the  syndicate 
Alto  Orinoco.  The  judge  of  the  Iirst  instance  received  testimon}-  requested  by  the  com-, 
plainant  and  that  of  .said  Mr.  Rogé,  and,  not  finding  any  merit  from  the  summary  pro- 
ceedings to  follow  up  the  suit,  issued  a  decree  on  November  h  of  said  year  discontinuing 
the  action  and  declaring  that  it  did  not  injure  the  defendant  in  any  manner  »us  to  his  ix'pu- 
taton. 

This  decision  having  been  called  to  the  attention  of  the  superior  judge  in  tlie  ordinary 
manner,  the  lattei'  oilicial  l)y  a  decree  dated  January  7,  1SS9,  revoked  the  decree  i.ssued  by 
the  judge  of  the  first  intsance  and  made  an  order  for  detention  against  tlie  citizen  Ernesto 

a  See  Venezuelan  Arbitrations  of  1903,  Ralston's  Report,  pp.  490-510,  inc.  Decided  by 
commission  under  I'rotoco!  of  1902.  While  the  French  Connnissioner  generally  concurred 
in  the  result  indicated  by  the  following  opinions,  they  were  not  submitted  to  him  and  ho 
accepted  no  responsibility  for  their  reasoning. 

454 


OPINIONS    OF    COMMISSION    RENDERED    IN    CARACAS.  455 

Rogé.  Dr.  F.  A.  Hammer  and  Ramdn  Barrios  Gómez  having  certified  that  Rogé  was 
suffering  from  rheumatism  in  the  precordial  region,  which  prevented  him  from  remaining 
in  the  pubhc  jail  as  a  prisoner  of  that  city,  said  superior  judge  made  an  order  to  the  judge 
of  the  first  instance  that  he  should  transfer  said  Rogé  to  the  hosjiital  for  men  of  that  city. 

The  judgment  of  the  superior  judge  having  l)(>cn  appealed  from  in  turn  by  Rogé,  the 
record  j)as.sed  to  the  supreme  court,  which  in  a  judgment  dated  February  13,  1889,  revoked 
¡n  all  its  parts  the  judgment  rendered  by  the  superior  court,  and  confirmed  the  decree 
issued  by  the  court  of  the  first  instance  on  November  5,  1888,  ordering  that  the  proper 
order  be  issued  so  that  the  defendant.  Rogé,  might  be  placed  at  liberty,  which  order  was 
made  on  the  same  da3^  E.  Rogé  bases  his  claim  for  indemnity  upon  the  injury,  which  he 
asserts  was  committed  against  his  person,  in  ordering  his  detention  and  committing  him 
to  be  deprived  of  his  liberty  for  the  space  of  thirty-seven  days,  the  superior  judge  of  Ciudad 
Bolívar  violating  by  this  proceeding  the  definite  provisions  of  article  271  of  the  code  of 
criminal  procedure. 

On  July  4,  1S92,  Ernesto  Rogé  addres,sed  himself  to  the  minister  of  foreign  relations  of 
France,  asking  that  his  claim  be  pressed  against  the  Ciovernment  of  \'enczucla  for  damages 
and  injuries  which  he  estimated  at  the  sum  of  2(X),(XX)  i)olivars. 

During  the  detention  of  Rogé  notes  were  exchanged  between  the  representative  of  France 
in  Venezuela  and  the  minister  of  foreign  relations  of  the  latter  country,  the  minister  of 
France  interposing  his  diplomatic  action  in  order  to  procure  the  prompt  release  of  Rogé 
and  reserving  in  said  notes  all  rights  concerning  the  moral  and  material  satisfaction  that 
the  Government  of  France  on  the  one  part,  or  Mr.  Rogé  on  the  other,  might  Ix'lieve  the)' 
were  entitled  to  obtain  from  the  Government  of  Venezuela  with  reference  to  the  attempt 
consummated  against  the  liberty  of  a  French  citizen. 

Proof  also  exists  in  the  record,  which  shows  that  the  President  of  the  Republic  and  the 
minister  of  foreign  relations,  then  in  authority,  addres.sed  themselves  by  telegraph  concern- 
ing the  actions  of  the  French  minister  to  the  president  of  the  State  of  Bolivar,  asking  the 
necessarj'  information  for  a  correct  understanding  of  the  matter,  of  which  demand  the 
said  representative  was  duly  advi.sed.  There  exists  also  a  telegram  dated  on  January  16, 
from  Mr.  Saint  Chaffraj',  minister  of  the  French  Republic,  addressed  to  Mr.  Delort  at  Ciudad 
Bolívar,  which  says: 

"Relying  upon  the  intentions  and  sentiments  of  equity  of  the  Government,  I  do  not 
doubt  that  what  is  necessary  will  be  done  in  order  to  assure  Mr.  Rogé  of  the  benefits  of 
constitutional  guaranties  and,  on  this  occasion,  to  give  a  new  proof  of  its  benevolent  inten- 
tions toward  the  Alto  Orinoco  Company." 

The  superior  judge  of  Ciudad  Bolívar,  in  ordering  the  detention  of  E.  Rogé,  violated  the 
provisions  of  articles  200  and  271  of  the  code  of  criminal  procedure,  it  being  expressly 
provided  b}'  said  articles  that — 

"In  every  case  of  discontinuance  if  tlie  act  in  controvers}-  has  warranted  the  detention 
of  the  defendant,  and  if  said  detention  has  been  effected,  the  person  or  persons  released 
from  responsibihty  shall  immediately  be  placed  at  liberty,  under  bond,  while  the  superior 
tribunals  affirm  or  overrule  the  judgment,  as  they  are  empowered  to  do  by  this  code." 

Rogé  not  having  been  properly  imprisoned  in  accordance  with  the  discontinuance  of 
the  judge  of  the  first  instance,  becau.se  the  committing  magistrate  did  not  find  any  reason 
to  order  his  detention  in  conformity  with  article  137  of  said  code,  the  .superior  judge  could 
not  order  the  arrest  of  tiie  accused,  becau.se  he  had  not  been  put  at  liberty,  but  he  ought 
to  have  limited  himself  to  referring  his  judgment  to  the  supreme  court,  and  until  it  was 
rendered  final  by  its  confirmation  it  was  the  place  of  the  committing  magistrate  or  the  judge 
of  the  first  instance  to  fulfill  wliat  had  been  definitely  adjudged,  and  his  place  to  decree 
the  detention  of  the  accu.sed. 

The  arbitrator  considers  this  violation  of  the  law  as  an  unjust  and  illegal  act  perpetrated 
by  the  superior  judge  of  Ciudad  Bolívar;  but  at  the  same  time  he  can  not  help  but  appreciate 
the  attitude  of  the  judge  of  the  first  instance,  who  in  a  truly  justified  and  honorable  judg- 
ment gave  ever\  sort  of  guaranty  and  satisfaction.     Likewise  he  considers  the  proceeding 


456  APPENDIX. 

of  the  supreme  court  entirely  in  accord  with  the  law  and  the  acts  which  the  President  of  the 
Republic  and  his  ministers  of  interior  and  foreign  relations  performed  with  all  diligence  in 
order  to  satisfj-,  as  far  as  possible,  the  demand  of  the  minister  of  France  in  favor  of  Rogé 
showing  without  any  doubt  what  the  said  representative  expressed  in  his  telegram  copied 
above,  the  good  inhniions  and  senliments  of  equity  of  the  Government,  and  that  the  necessary 
steps  utre  being  taken  to  assure  Mr.  Rogé  of  the  benefit  of  the  constitutional  guaranties. 

The  amount  of  indemnity  which  is  demanded  is,  under  everj'  aspect,  disproportionate, 
seeing,  as  it  is  demonstrated,  that  relief  was  sought  to  l)e  given  by  the  national  Government 
for  the  illegal  act  in  question  with  the  least  possible  delay,  and  it  was  corrected  by  the  judg- 
ment of  the  siipremc  c«urt  in  the  State  of  Bolivar. 

The  Venezuelan  commissioner  considers  that  it  would  be  a  reasonable  and  equitable  com- 
pensation for  the  damage  suffered  by  Rogé  on  account  of  his  detention  in  the  hospital  of 
Ciudad  Bolívar  for  thirty-seven  days  to  award  him  the  sum  of  10,000  bolivars. 


DECAUVILLE    COXrPA.NY    CASE. 

Demand  that  claim  be  paid  for  the  amount  demanded  in  bonds  of  diplomatic  deljt  at  40  percent  of  their 
face  value  refused.  Held,  that  the  commission  had  no  jurisdiction  to  change  manner  of  payment 
prescribed  by  protocol. 

Pail,  Commissioner  : 

This  claim  for  indemnity  is  made  up  of  the  following  amounts: 

Bolivars. 
Balance  of  the  debt  of  the  Government  of  Venezuela  to  the  Decauville  As.socia- 

tion ,  due  May  1 5,  1 889 10,  923.  46 

Installment  due  September  15,  1889 25,  923.  47 

Interest  at  6  per  c*nt,  in  accordance  with  the  liquidation 9,  896.  55 

Difference  on  account  of  the  value  which  is  contained  in  the  claim  of  the  bonds 

of  the  diplomatic  debt,  estimating  them  at  60  per  cent 31, 162.  32 

77,  905.  80 

The  document  presented  in  support  of  this  claim  consists  of  a  contract  made  between  Mr. 
Alberto  Smith,  minister  of  public  works,  with  the  authorization  of  the  Persident  of  the 
Republic,  and  the  Vicomte  Gonzague  de  la  Baume,  as  representative  of  the  Decauville  du 
Petit  Bourg  Company,  whereby  the  indebtedness  which  said  company  held  against  the  Gov- 
ernment of  Venezuela  for  the  sale  of  four  iron  bridges  was  liciuidated  and  the  amount  of  said 
indebtedness  was  fixed  at  the  sum  of  77,770.39  bolivars,  inclusive  of  interest  to  the  dates  of 
the  respective  expirations  of  the  three  terms  agieed  on  in  said  contract  for  the  total  payment 
of  the  debt. 

It  appears,  from  a  communication  addressed  by  the  citizen  minister  of  the  treasury  to  the 
minister  of  foreign  relations,  dated  Juno  5  of  the  present  year,  and  numbered  284,  a  copy  of 
which  has  been  transmitted  to  this  commission,  that  the  account  which  the  representative 
of  the  Decauville  company  makes  of  the  payments  made  by  the  Government  of  Venezuela 
upon  the  dates  therein  indicated  on  account  of  the  del)t,  is  correct,  and  the  balance  which 
results  as  being  owed  on  account  of  this  debt  at  the  date  of  the  termination  of  the  respective 
obligations,  amounting  to  36,848.93  boHvai-s,  is  likewise  correct.  Notwithstanding  that 
the  liquidation  of  interest  made  in  the  contract  between  the  minister  of  public  w»)rks  and 
the  represtintative  of  the  DtTauville  company  was  made  at  the  rate  of  6  per  cent  aninially 
up  to  the  dates  established  for  the  subseijuent  payments  of  the  debt,  there  is  no  proof  tiiat 
it  was  agreed  to  make  any  agreement  in  the  future  for  interest  upon  the  sums  which  nught 
remain  owing  at  the  same  rate,  wherefore  the  rate  established  by  this  commission  ought  to 
govern  in  this  ca.se — that  is  to  say,  that  in  the  ca,ses  in  which  there  is  no  express  agreement 
concerning  interest  there  will  l)e  allowed  upon  li(iuidated  debts  or  obligations  for  loans  of 
cash  at  the  legal  rate  of  3  j)er  cent,  in  conformity  with  article  1720  of  our  ci)cle,  which  is  in 


OPINIONS    OF    COMMISSION    RENDERED    IN    CARACAS.  457 

accord  with  article  1907  of  the  Froncli  civil  code.  This  liciuidation  heiiif;  carried  into  eil'cct 
from  the  respective  dates  upon  the  lialances  which  Inivc  icinaincd  owinfj,  a  result  of  4,530.85 
bolivars  is  obtained. 

The  contention  which  the  claimant  makes  that  he  .should  be  allowed  40  per  cent  more 
upon  the  amount  of  the  principal  debt  and  upon  the  interest  because  of  the  fact  that  the 
payment  was  made,  in  conformity  with  the  terms  of  the  protocol,  in  bonds  of  the  3  per  cent 
diplomatic  debt,  instead  of  in  cash,  is  entirely  inadmissible,  becau.se  the  party  claimant  has 
spontaneously  submitted  his  demand  to  this  commission,  whose  authority  is  limited  to 
examining  the  claims  presented  by  Frenchmen,  founded  upon  facts  prior  to  May  23,  1899, 
fixing  the  amount  thereof  in  conformity  with  the  proofs  which  relate  to  the  facts  upon  which 
they  are  based  and  in  conformity  with  the  grounds  that  may  justify  them. 

The  method  of  payment  established  by  Article  III  of  the  protocol  is  a  fact  entirely  .sepa- 
rated from  the  duty  of  judging  concerning  the  justice  or  injustice  of  the  demand. 

This  fact  relates  solely  to  the  execution  of  the  judgment  which  the  arbitrators  may  pro- 
nounce, and  this  conclusion  is  clearly  deduced  from  the  terms  of  said  article,  which  reads 
as  follows: 

"Awards  [those  which  the  arbitrators  or  the  lunpire  may  allow]  shall  be  paid  to  the  French 
Government  in  bonds  of  the  3  per  cent  diplomatic  dcbtwitliin  three  months  after  the  agree- 
ment or  judgment."  « 

The  provision  which  Article  IV  of  the  protocol  contains  is  of  the  same  character,  and 
provides: 

"  That  the  Government  of  Venezuela  shall  ask  Congress  to  include  in  the  provision  for 
expenses  the  sums  necessary  for  the  payment  of  the  monthly  installments  in  arrears  of  the 
diplomatic  debt,  and  the  holders  of  bonds  of  that  debt  shall,  besides,  participate  in  all  the 
advantages  which  may  accrue  to  them  from  the  strict  application  of  the  Venezuelan  laws 
applicable    to   the   premises." 

The  definite  provision  of  Article  III  and  that  which  Article  TV  of  the  protocol  contains 
relate  solely  to  negotiations  of  government  with  government,  which  refer  to  the  manner  of 
paying  obligations  incurred,  be  it  by  contract,  by  former  arbitral  decisions,  or  by  tho.se  which 
the  present  conmiis.sion  may  pronounce.  It  is  solely  for  the  respective  governments  to  deter- 
mine the  manner  of  payment  by  special  agreement,,  and  in  no  way  can  this  be  attributed 
to  the  arbitrators,  who  are  only  called  upon  to  decide  concerning  the  justice  oí'  the  claim  and 
to  determine  the  amount  which  the  Government  of  Venezuela  has  to  pay,  in  case  it  has  to 
pay,  taking  into  consideration  the  facts  and  foundation  of  the  claim. 

It  is  to  be  observed  that  among  the  40  claims  which  have  been  presented  before  this 
commission  up  to  date,  embraced  in  Article  II  of  the  protocol  signed  at  Paris  February  19, 
1902,  the  claim  concerning  which  this  decision  is  given  is  the  first  to  set  up  the  extraoidinary 
and  rash  contention  that  there  be  attributed  to  the  diplomatic  debt  by  the  arbitrator  a 
value  of  40  per  cent,  thereby  causing  a  notorious  injury  to  the  actual  holders  of  said  debt  and 
to  those  who  arc  authorized  by  the  findings  of  this  commi.s.sion  to  receive  in  payment  of  their 
debt,  according  to  the  terms  of  the  protocol,  bonds  of  the  said  diplomatic  debt.  Such  an 
arbitrary  proceeding  would  cause  the  continued  depreciation  of  the  value  of  the  debt  until  it 
destroyed  it  completely,  and  the  holders  of  it  would  be  the  first  to  sufTer  the  consequences  of 
the  values  established  against  the  economic  rules  which  govern  public  securities. 

Therefore  this  portion  of  the  claim  is  di.sallowed,  and  it  is  admitted  for  the  principal  and 
interest  estimated  until  tlic  15th  of  September  of  the  present  year,  or,  say,  three  months 
after  the  date  of  the  present  award,  amounting  to  41,377.78  bolivars. 

«Page  3. 


458  APPENDIX. 

LALANNE    AND    I.EL>f)rK    CASE. 

Damages  allowod  hocauso  of  unjustifled  refusal  of  customs  oificials  to  clear  ship  from  Venezuelan  port. 

Pail,  Commissioner: 

This  claim  is  composed  of  34,370.40  holivans  demanded  by  G.  Lalanne  for  damages  and 
injuries  resulting  from  the  fact  that  the  head  of  the  custom-house  of  Ciudad  Bolívar  did  not 
permit  the  .shipment,  in  June,  1886,  on  the  steamer  Dieu  Merci,  of  120  head  of  cattle  which 
Gen.G.  Battistini  held  ready  to  send  toGuayana,  as  had  been  done  in  other  prior  shipments, 
in  order  to  fulfill  the  contracts  made  by  Lalanne  with  the  governor  of  French  Guiana,  for 
furnishing  meat  to  the  penitentiary,  garrison,  and  other  administrations  of  Guiana,  and  for 
14,400  bolivars  which  the  owner  of  the  steamer  Dieu  Merci  demands  for  the  freight  which 
the  cargo  of  120  head  of  cattle  ought  to  have  produced  him  at  120  francs  each,  of  which  he 
was  deprived. 

From  the  documents  presented  in  this  claim  and  in  that  of  G.  Battistini,  which  is  joined 
with  it,  it  is  seen  that  G.  Lalanne  periodically  sent  to  Ciudad  Bolívar  a  steamship  to  load 
cattle  destined  for  Guiana  for  the  purpose  of  complying  with  contract  with  the  governor  of 
said  colony;  that  a  contract  being  in  existence,  made  between  Messrs.  Fonseca,  Xavarro  & 
Co.,  merchants,  of  Ciudad  Bolívar,  with  the  national  Government,  which  accorded  them  the 
exclusive  privilege  of  exporting  cattle  liy  steamships,  which  said  firm  ought  to  have  put  in 
operation  for  the  navigation  of  the  Orinoco  River  between  Ciudad  Bolívar  and  the  West 
Indies,'  that  they  had  consented  to  the  exporting  of  cattle  in  steamers  sent  by  Lalanne, 
charging  for  each  shipment  8  bolivars  per  head;  that  in  its  turn  the  national  custom-hou.se  in 
Ciudad  Bolívar  required,  in  order  to  give  permission  for  shipments  of  cattle,  that  there  be 
presented  by  the  shipper  the  order  or  pemiission  of  Fonseca  &  Co.,  showing  the  paj'ment  to 
them  of  the  tax  imposed;  that  in  accordance  with  this  rule  G.  Battistini  had  been  permitted 
to  ship  cattle  for  Cayena  in  steamships,  by  order  and  for  the  account  of  Lalanne,  up  to  the 
number  of  767  head,  from  Septemlier,  1885,  (o  March,  1886,  Battistini  having  paid  to 
Fonseca,  Navarre  «S;  Co.  the  sum  of  6,136  bolivars,  as  is  proven  bj-  tlie  receipt  of  cash  by 
Alejandro  Mantilla,  as  attorney  for  Fonseca  &  Co.;  that  in  the  month  of  June,  1886,  the 
steamer  Dieii.  Merci  arrived  at  Ciudad  Bolívar  to  load  the  customary  120  head  of  cattle 
which  G.  Battistini  had  ready  for  this  journey  upon  the  order  and  for  the  account  of  Lalanne, 
and  that  it  was  not  possible  to  complete  the  shipment  because  the  custom-house  had  refused 
to  permit  it,  alleging  that  the  order  of  Fonseca  &  Co.  had  not  been  presented  to  it,  as  was 
necessarj';  that  it  was  impossible  to  obtain  this  order  because  Messrs.  Fon.seca  &  Co. 
refused  to  give  it,  notwithstanding  that  payment  of  the  tax  was  offered  them,  as  had  been 
done  before,  and  even  Battistini  had  ofl'ered  to  bu}-  from  Fonseca  &  Co.  their  own  cattle 
and  ship  them  in  place  of  those  Battistini  held  ready;  that  these  refusals  of  Fonseca  &  Co. 
and  that  of  the  maritime  government  house  at  Ciudad  Bolívar  caused  the  detention  foi'  .sev- 
eral days  of  the  steamer  Dieu  Merci  in  the  harbor  of  (  iudad  Bolivar,  and  caused  it  to  depart 
from  the  port  without  loading  the  cattle  under  the  protest  of  the  captain:  and,  finally,  it 
is  also  proven  that  in  the  months  following,  the  voyages  of  the  steajiier  and  the  shipments  of 
cattle  were  continued  for  the  account  of  Lalanne,  the  shipment  being  permitted  by  tlie 
Government  custom-hou.se  at  Ciudad  Bolívar,  because  the  hindrances  placed  uj)on  f  railic  in 
cattle  on  the  Orinoco  by  the  hou.se  of  Fonseca  &  Co.  had  in  fact  cea.sed. 

During  tb(!  period  of  the  first  events  the  president  of  the  State  of  Guiana  was  Gen.  Kai- 
mundo  I""onseca,  an  active  member  of  the  firm  of  Fon.seca,  Navarro  &  Co.,  and  at  the  time 
when  the  opposition  of  .said  house  to  the  .shipment  of  <attle  in  Ciudad  Bolívar  cea.sed  General 
Fon.seca  ceased  to  be  president  of  that  section,  being  called  by  (¡en.  Cíu/.mán  Bianco  to  form 
a  part  of  his  cabinet  in  Sej)tember,  188().  These  facts  being  taken  into  consideration  in  tlie 
light  of  an  impartial  and  just  appreciation,  the  conviction  results  that  an  abuse  of  authority 
was  committed  by  the  president  of  the  State  of  Guiana  by  refusing,  in  his  capacity  as  an 
as.sociate  of  the  firm  of  Fon.seca  &  Co.,  to  permit  (he  .shipment  of  cattle  under  the  same  con- 
ditions that  his  commercial  firm  had  adopted  in  prior  shipments,  and  that  this  abu.se  was 
ari)itrarily  sustained  by  the  chief  of  th(>  customs  oí  Ciudad  Bolíxai',  who  ought  to  have 


OPINIONS    OF    COMMISSION    RENDERED    IN    CARACAS.  459 

authorized  the  shipment  upon  learning  that  the  ownei-s  of  the  cattle  were  disposed  to  pay  to 
Fonseca  &  Co.  the  same  duties  or  taxes  which  in  prior  shipments  they  had  received.  Tliis 
dual  entity  of  first  magistrate  of  a  body  politic  and  partner  of  a  commercial  firm  putting  in 
action  the  influences  of  his  power  in  order  to  obtain  pecuniaiy  benefits  at  the  cost  of  legiti- 
mate interests  created  under  the  protection  of  the  constitutional  guaranties  naturally  pro- 
duced a  disturbance  in  the  dealings  cstal)lislied  at  Ciudad  Bolívar  by  Lalanne  for  the  ship- 
ment of  cattle,  and  gave  rise  to  the  present  claim  which,  even  if  excessively  exaggerated,  has 
in  its  favor  the  principle  of  equity.  Having  admitted  this  in  the  claim  of  Lalanne  and 
Ledour,  the  former  a  contractor  in  the  purcha.se  and  exportation  of  cattle  for  Cayena  and  the 
latter  the  owner  of  the  steamer  Dieu  Merci,  the  Venezuelan  cümmi.ssioner  proceeds  to 
estimate  the  damage  suffered  by  both. 

The  death  of  the  29  head  of  cattle,  which  Lalanne  claims  took  place  in  the  journey  from 
Demerara  to  Cayena,  is  not  proven,  and  it  is  only  proven  that  the  Dieu  Merci  took  on  l)oard 
at  Cayena  75  head  of  cattle  coming  from  Demerara.  Nor  is  the  difference  in  price  between 
the  cost  of  the  cattle  bought  at  Demerara  and  the  cost  of  the  cattle  in  Ciudad  Bolivar  des- 
tined for  the  shipment  proved.  The  prospective  profits  of  122. .50  bolivars  for  each  head  of 
cattle  which  the  contractor  believed  he  would  obtain  for  the  120  head  which  ought  to  have 
been  shipped  from  Ciudad  Bolívar  is  exaggerated,  since  it  is  equivalent  to  1(X)  per  cent  on  the 
pric«  of  the  cattle  in  that  city;  besides  this,  damage  can  not  be  demanded  except  for  45 
head,  since  75  were  unloaded  in  Cayena  upon  that  voyage  of  the  Dieu  Merci,  and  upon  them 
the  contractor  reahzed  the  profit  which  they  ought  to  have  yielded.  There  is  likewise  an 
exaggeration  in  the  demand  of  the  shipowner  for  14,400  bolivars  for  the  freight  upon  120 
head  of  cattle  which  he  did  not  take  on  at  Ciudad  Bolívar,  since  this  damage  is  leduced  to 
the  freight  on  45  fewer  cattle  loaded  upon  said  voyage,  to  the  expensesof  delay  during  his 
stay  at  Ciudad  Bolívar,  and  to  those  of  the  journey  and  stay  at  Demerara. 

Taking  these  points  into  consideration,  the  Venezuelan  commissioner  allows  G.  Lalanne 
an  indemnity  of  4,000  bolivars,  and  the  owner  of  the  ship  Dieu  Merci  4,000  bolivars — in  all, 
for  the  total  claim,  8,000  bolivars. 


BAT-nSTINI    CASE. 

Damages  allowed  claunant  for  unjustified  refusal  of  Customs  officials  to  clear  ship,  whereby  claimant 

suffered  injur}'. 
Damages  allowed  for  wrongful  imprisonment. 

Claim  for  payment  of  outstanding  bonds  disallowed  because  of  want  of  proof  of  ownership  thereof. 
Claim  allowed  against  Federal  Government  for  supplies  furnished  the  State  of  Guayana. 

Paúl,  Commissioner: 

This  claim  is  composed  of  ten  distinct  items,  which  the  petitioner  classifies,  estimating  tlie 
amount  of  each  one  of  them,  wherefore  this  opinion  will  refer  particularly  to  each  of  them, 
examining  the  origin  and  the  proofs  upon  which  they  are  based,  and  will  indicate  the 
opinion  which  the  corresponding  demand  for  indemnity  may  merit. 

1.  For  hindrances  oppo.sed  to  the  departure  of  the  French  steamer  Dieu  Merci  witli  a  cargo 
of  cattle  destined  for  Demerara  and  Cayena,  and  the  consequent  necessity  of  leaving  this 
cargo  on  shore  where  the  cattle  were  destined  for  the  provision  of  the  government  of 
Cayena,  the  claimant  demands  100,000  bolivars. 

A  claim  on  account  of  these  same  facts  has  been  presented  before  this  conunission  by 
Messrs.  G.  Lalanne  and  H.  Ledour,  the  former  a  contractor  for  the  furnishing  of  cattle  for 
the  Government  of  French  Guayana,  and  the  latter  the  owner  of  the  steamer  Dieu  Merci, 
and  that  claim  was  decided,  an  allowance  of  8,000  bolivars  being  made  for  the  damages, 
because  the  custom-house  at  Ciudad  Bolívar  did  not  allow  the  shipment  of  120  head  of  cattle 
destined  by  Battistini  to  fulfill  the  order  of  sliipment  for  his  constituent,  Lalanne.  The 
cattle  appear  to  have  been  the  property  of  Battistini,  who  sold  them  to  Lalanne  at  a  given 
price.     It  does  not  appear  that  these  cattle  were  lost  or  decreased  in  value  as  a  consequence 


400  APPENDIX. 

of  remaining  in  Ciudad  Bolívar,  and  it  is  proved  that  the  voyage  of  the  steamers  and  ship- 
ment of  cattle  continued  without  intermption,  Battistini  himself  carrying  out  said  shipment 
for  the  account  and  by  order  of  Lalanne. 

The  injury  suffered  by  Battistini,  who  is  the  owner  of  pasture  lands  on  the  banks  of  the 
Orinoco,  was  nothing  but  his  returning  these  cattle  to  the  pastures  or  their  sale  in  Ciudad 
Bolívar  at  a  price  not  so  high  as  the  transaction  of  Lalanne  assured  him.  Estimating  this 
expense  or  loss  conservatively,  the  sum  of  5,(X30  bolivai-s  is  allowed  in  this  respect. 

2.  For  the  matter  of  Caliman,  civil  chief  of  Ciudad  Bolívar,  who  (according  to  the  record) 
has  committed  injustices  in  detriment  to  his  interests,  20,000  bolivars. 

From  the  record  it  appears  only  that  the  civil  chief,  Caliman,  ordered  the  withdrawal  from 
public  market  of  Ciudad  Bolívar  of  a  quantity  of  raw  meat ,  which  Battistini  had  sent  there  for 
its  sale,  disobeying  positive  orders  not  to  do  so,  because  this  act  was  contrary  to  a  contract 
made  with  certain  persons  for  the  furnishing  of  meat  in  the  market.  The  meat  withdrawn 
was  attached  and  sold  at  public  auction  by  the  police  officer.  There  exists  no  other  proof 
referring  to  the  action  of  the  civil  authority  against  the  interests  of  claimants,  and  no 
claim  against  the  nation  can  be  founded  upon  this  procedure  of  municipal  regulation. 

3.  For  the  claim  of  Pereira  Alvarez,  judge  of  the  first  instance  at  Ciudad  Bolivar,  who,  as 
Battistini  says,  has  committed  al)ominable  injustices  against  his  person  and  again.st  his 
interests,  for  which  he  has  not  been  able  to  obtain  any  reparation  before  the  tribunals,  40,000 
bolivars. 

It  is  proven  that  because  Battistini  had  protested  against  the  actiolî  of  thexivil  chief, 
Caliman,  in  withdrawing  from  the  market  his  raw  meat,  a  protest  which  the  subtreasurer  of 
Ciudad  Bolívar  did  not  wish  to  record,  because  he  considered  it  offensive  to  the  authority, 
Judge  Pereira  Alvarez  rendered  judgment  for  calunmy  and  injuries  against  Battistini,  and 
issued  an  order  of  arrest  against  him  and  a  mandate  to  all  the  authorities  to  carrv-  it  into 
effect.  Battistini  fled  from  the  locality  and  came  to  tiie  capital  of  the  Republic  seeking  pro 
tection.  The  son  of  Battistini  complained  to  the  judge,  and  the  latter  revoked  the  order  of 
detention,  because  the  offense  had  not  been  proven;  that  is,  because  there  was  nothing 
injurious  or  calumnious  in  Battistini's  protest.  Battistini  sued  the  judge,  Pereira  Alvarez, 
before  the  court  for  neglect  in  the  exercise  of  his  duties,  but  the  court  could  not  move  because 
Battistini  w^as  not  able  to  obtain  the  necessarj'  copies  of  documents  which  the  judge  in  ques- 
tion ought  to  have  ordered  to  be  issued  to  him,  and  his  solicitations  in  this  regard  before  the 
president  of  the  State  and  other  local  officials  were  futile.  These  facts  proved  the  denial  of 
justice,  becau.sc  the  local  authorities  deprived  Battistini  of  the  legal  means  of  instituting 
before  the  competent  tribunals  the  actions  which  the  laws  would  authorize  him  in  case  he 
might  improperly  have  been  condemned  to  a  criminal  judgment.  In  this  respect  the  Vene- 
zuelan commissioner  believes  that  Battistini  is  entitjed  to  an  indemnity  which,  in  relation  to 
tlieoirense  and  the  injuries  whicii  the  arbitrary  order  of  detention  of  the  judge  caused  him, 
he  estimates  at  25,000  bolivars. 

4.  This  item  of  the  claim  is  a  demand  for  indemnity  amounting  to  75,000  bolivars  for 
principal  and  interests  for  a  certain  number  of  coupons  or  bonds  of  the  debt  of  the  State  of 
Guayana,  of  which  Battistini  says  he  is  the  owTier,  and  that  by  decree  of  President-General 
Fonseca,  it  was  ordered  that  tlicy  should  not  be  admitti'd  as  had  been  the  custom  in  payment 
in  the  tax  offices  of  the  State  unless  they  had  been  redeemed  up  to  date.  The  claimant  has 
not  presented  the  original  l)()nds  or  any  part  of  tliem  which  he  iiiny  have  in  his  j)os.se.ssion. 
The  failure  to  present  .said  bonds  makes  an  appreciation  ri>gardiiig  the  legitimacy  of  the 
claim  impossil)le,  liecaiis*'  its  essential  foundation,  which  is  tlie  ownership  or  existence  under 
the  control  of  Battistini  of  .such  certificates  or  bonds  and  the  exact  a.scertainment  of  tlieii- 
amount,  is  wanting.  Besides  this  circumstance,  which  by  itself  alone  nullifies  the  claim,  it 
appears  from  the  claim  of  Battistini  himself  that  these  bonds  are  nothing  eLsi>  but  bonds  of  a 
publi<'  debt  of  the  State  of  Guayana  extinguishable  from  the  time  of  their  issue  in  1878  by  10 
per  cent  of  the  ordinary  receipts  of  the  treasury  of  the  Stale;  that  later,  in  Novemln'r,  1882, 
the  prcsidi>nt  of  the  State  suspended  tiie  circulation  of  .said  bonds,  and  on  Deceml)er  9  of 
said  yi'iir  he  i.ssued  a  decree  ordering  their  re<iem|ition  by  means  of  payments  to  1k>  made 


OPINIONS    OF    COMMISSION    RENDERED    IN    CARACAS.  461 

out  of  an  allotment  of  25  per  cent  of  the  special  revenue  of  the  State  of  Bolivar  destined  for 
the  section  of  Guayana  on  June  7,  1884,  and  payment  was  made  whereby  the  value  of  the 
bonds  was  reduced  from  104,837  bolivars,  tlie  amount  of  the  first  issue,  to  the  sum  of  49,507 
bolivars,  which  sum  Battistini  says  was  completely  in  his  possession  ;  that  the  effects  of  the 
financial  crisis  that  took  place  at  that  time  and  the  reduction  of  25  per  cent  in  the  revenue 
of  the  allowance  and  by  the  territorial  revenues  hindered  the  continuation  of  the  extiiiguisli- 
ment,  and  finally  that  the  legislature  of  the  State  by  a  legislative  act  t)f  1S88  passed  a  law 
concerning  the  public  debt  which  had  as  an  object  to  consolidate  all  the  debts  of  the  State. 
It  is  to  this  decree  that  the  judgments  of  the  court  in  the  various  grades  of  jurisdiction  of  the 
State  of  Bolivar  have  remitted  Mr.  Battistini  in  the  suit  which  he  instituted  against  tiio 
treasury  of  the  State  for  the  payment  of  the  bonds  which  were  in  his  possession.  In  May, 
1890,  Battistini,  the  claimant,  instituted  a  proceeding  of  cassation  against  this  decision  in 
the  supreme  court  of  Ciudad  Bolivar  as  a  court  of  last  resort,  and  on  the  16th  of  that  month 
the  court  of  cassation  granted  the  appeal  which,  as  appears  from  the  statement  of  Battistini, 
was  allowed  to  lapse. 

There  are,  therefore,  final  judgments  which  decree  that  Battistini,  like  any  other  holder 
of  the  internal  debt  of  the  State  of  Guaiana,  is  obliged  to  submit  him.self  to  the  laws  or 
decrees  which  govern  the  extinguishment  of  said  debt. 

It  is  a  principle  of  public  international  law  that  the  internal  debt  of  a  state,  classified  as  a 
public  debt,  which  is  subject  to  speculations  current  among  that  sort  of  values  which  are 
acquired  freely  and  spontaneously  at  very  different  rates  of  quotations  which  mark  great 
fluctuations  of  their  rise  and  fall,  can  never  be  the  subject  of  international  claims  in  order  to 
obtain  their  immediate  payment  in  cash  o  just  as  they  can  not  be  the  subject  of  judgments 
before  the  tribunals  of  the  country  in  order  that  their  holders  may  obtain  the  payment  of 
their  nominal  value.  To  establish  sucha  principle  would  be  to  put  a  premium  upon  stock 
jobbing,  which  would  be  often  possible  with  this  sort  of  public  values,  and  would  place 
nations  at  the  mercy  of  speculators  who  might  obtain  control  of  all  their  internal  debt. 
The  certificates  or  bonds,  in  question  in  the  matter  of  the  claim  of  Battistini,  in  this  sulj- 
division,  are  in  the  same  condition  as  the  internal  debt  of  the  nation,  which  amounts  to 
many  millions  and  bears  interest,  and  it  is  more  than  four  years  since  payment  for  its 
extinguishment  and  the  payment  of  interest  has  been  suspended  on  account  of  the  abnormal 
condition  caused  by  the  war.  Could  these  mixed  commissions  have  jurisdiction  to  decide 
claims  which  the  foreign  holders  of  this  internal  debt  might  present  to  them  in  order  to 
obtain  the  payment  of  the  principal  and  interests  i 

This  could  not  be  sustained  even  with  respect  to  the  foreign,  or  as  it  is  called  diplomatic 
debt,  of  3  per  cent,  nor  with  respect  to  any  public  debt  which  has  been  put  upon  the  specu- 
lative market  and  may  therefore  pass  from  hand  to  hand  by  virtue  of  transactions  j)rompted 
daily  by  those  who  profit  from  the  rise  and  fall  of  public  securities. 

This  portion  of  the  claim  is  declared  inadmissible,  because  it  can  not  be  prosecuted  before 
this  Commission. 

5.  This  portion  of  the  claim  arises  out  of  the  recovery  of  a  private  debt  which  Mr.  Hernan- 
dez Lopez  contracted  in  favor  of  Battistini,  amounting  to  the  sum  of  12,228  bolivars,  and 
which  gave  rise  to  a  suit  prosecuted  before  the  competent  judge  of  Ciudad  Bolívar,  in  which 
judgment  was  rendered  and  ordered  to  be  executed  ordering  the  attachment  of  the  property 
of  the  debtor.  This  attachment  could  not  be  carried  into  eflect  because  Hernandez  di.sap- 
pearcd  from  the  place  of  execution  and  the  property  of  the  debtor  could  not  be  found  upon 
which  to  lay  it.  Battistini  seeks  to  maKe  the  nation  responsible  for  the  insolvency  of  his 
private  debtor,  an  unsustainable  and  evidently  rash  pretension,  which  only  indicates  in  the 
petitioner  a  true  monomania  for  claims.  The  amount  of  this  portion  of  the  claim  therefore 
is  disallowed,  which  is  25,000  bolivare. 

6.  The  claim  of  35,000  bolivars  for  a  certain  quantity  of  sairapia,  which  was  declared 
contraband  after  a  formal  judgment  wliich  was  twice  appealed  and  terminated  in  the  full 

a  In  the  Italian  Commission  of  1903  (Boccardo  case,  not  reported)  judgment  was  given  on 
internal  bonds  on  authority  of  Aspinwall  case,  Moore's  International  Arbitrations,  p.  3(510. 


462  APPENDIX. 

Fodonil  court  confirming  the  judgments  of  the  first  and  second  instances,  which  condemned 
Battistini  to  lose  the  sacks  of  sarrapic,  a  contral«ind  article,  and  to  the  payment  of  double 
duties,  lacks  all  foundation,  l>ecause  there  is  upon  this  matter  res  judicata,  and  it  ought 
therefore  to  be  disallowed. 

(Items  7,  8,  and  9  dismissed  for  want  of  proof.) 

10.  For  the  value  of  a  certificate  issued  in  favor  of  Domingo  Maria  Battistini  April  29, 
1891,  by  the  general  internal  treasurer  of  the  State  of  Bolivar,  recognizing  the  debt  against 
the  old  State  of  Guayana,  amounting  to  13,780  bolivars,  for  supplies  made  to  the  State  of 
Guayana  and  by  order  of  the  citizen  president  of  the  same  State,  No.  2307.  This  is  admitted 
for  said  sum. 

For  interests  upon  tliis  receipt  and  other  general  injuries  there  is  aUowed  by  the  arbitrators 
the  sum  of  6,220  bolivars. 

(This  claim  was  allowed  for  50,000  bolivars.) 


PITON    CASE. a 

Prescription  unless  pleaded  by  the  debtor  will  not  be  taken  into  consideration  by  the  Commission. 

Paúl,  Commissioner  : 

The  claimants,  in  their  capacity  of  French  citizens,  and  sole  and  legitimate  children 
of  P.  Claudius  Piton  and  Augustina  Piton,  née  Lemoine,  as  appears  from  the  public  docu- 
ments which  have  been  presented  before  this  commission,  demand  from  the  Government 
of  Venezuela  the  payment  of  the  sura  of  489,468.64  bolivars  for  capital  and  interest  accrued 
since  the  date  of  their  claim,  arising  out  of  the  acknowledgment  made  by  the  minister 
of  interior  and  justice  on  January  7,  1868,  and  by  a  resolution  of  the  same  date  marked 
No.  5,  in  favor  of  Messrs.  A.  Lemoine  &  Co.,  for  the  following  amounts:  For  the  balance 
due  on  a  credit  of  $50,000,  to  which  they  have  a  right  by  the  contract  of  July  20,  1856, 
made  with  the  honorable  municipal  council  of  La  Guaira,  and  approved  by  the  govern- 
ment of  the  former  province  of  Caracas  on  August  28  of  the  same  year,  said  contract  having 
as  an  object  the  furnishing  of  drinkable  \vater  to  the  city  of  La  Guaira  by  means  of  an  iron 
pipe,  the  constiiiction  of  various  public  fountains,  the  building  of  a  reservoir  for  the  storage 
of  the  waters,  and  the  repairing  of  the  aqueduct  in  various  places,  $38,411.16. 
For  interest  accrued  upon  this  balance  at  the  rate  of  6  per  cent  per  annum 

from  June  1,  1860,  until  December  31,  1867 $16, 751.  50 

For  damages  and  injuries  which  A.  Lemoine  &  Co.  claim  for  the  breach  of  the 
contract  (it  being  remembered  that  this  amount  is  much  less  than  what 
the  profit  of  1  per  cent  per  month  would  have  been  which  was  indicated 
as  simple  interest  in  the  original  contract) 7,  500.  00 

62. 662.  66 
It  was  moreover  resolved  that  this  sum  of  $62,662.66  should  be  paid  by  the  administra- 
tion of  the  revenues  of  tlic  department  of  Vargas  by  tiie  receipts  from  the  public  market 
of  .said  city  of  La  Guaira,  and  by  tiie  tarifT  for  pure  water  wiiich  .should  be  collected  at  that 
place,  the  payments  having  to  be  made  monthly  and  the  account  to  bear  interest  at  said 
rate  of  6  per  cent  per  annum  only  upon  the  balance  of  $38,411.16,  .since  in  no  ca.se  could 
interest  be  paid  upon  interest. 

As  appears  from  the  documents  registered  at  La  Guaira  on  January  28,  1868,  under 
No.  4,  protocol  8,  the  collector  of  revenues  of  the  municipal  council  of  the  department 
of  Vargas,  Mr.  G.  Quevedo,  by  virtue  of  the  special  authorization  of  said  body,  by  .said 
instrunuüit,  put  Messrs.  A.  Ijcmoine  &  Co.  into  possession  of  the  receipts  of  tlic  market 
and  of  pure  water  whidi  might  be  collected  by  the  administration  of  municipal  rcvciuie.s 
of  the  department  of  Vargas,  its  product  to  be  delivered  monthly,  without  any  other 
reduction  except  what  might  be  cau.sed  by  its  collection. 


o  Reported  in  Venezuelan  Arbitrations  of  1903,  p.  607,  as  "Daniel"  case. 


OPINIONS    OF   COMMISSION    RENDERED    IN    CARACAS.  463 

It  appears  from  the  documents  presented  that  the  administrative  council  of  tlie  depart- 
ment of  Vargas  carried  on  with  A.  Lemoinc  &  Co.  an  open  account  in  fulfillment  of  the 
resolution  of  the  ministry  of  the  interior  and  justice,  under  the  division  of  districts  until 
November  1,  1871,  when  tlie  change  of  application  of  the  funds  destined  for  the  extinction 
of  the  capital  acknowledged  to  be  due  A.  Lemoine  &  Co.,  and  the  interest  on  said  capital 
at  one-half  per  cent  per  month.  From  this  la.st  account  it  appears  that  upon  the  above 
date,  November  1,  1871,  the  nmnicipal  council  of  the  department  of  Vargas  owed  A. 
Lemoine  &  Co.  the  following: 

For  capital S31,  944.  04 

Interest 25,  234.  62 

Damages  and  injuries  acknow^ledged 7,  500.  00 

64,  678.  66 

An  account  lias  been  presented  bearing  date  April  17,  1882,  showing  an  amount  due 
of  .$84,643.66  as  the  balance  of  the  capital  and  interest  in  favor  of  A.  Lemoine  &  Co.,  and 
a  note  addressed  by  the  president  of  the  municipal  council  of  the  district  of  ^'argas,  dated 
June  1,  1883,  No.  188,  to  Mr.  Daniel  Dibble,  in  order  that  he  might  transmit  it  to  the  heirs 
of  A.  Lemoine,  deceased,  wherein  he  announced  to  them  that  said  municipal  council  at 
its  session  of  June  7,  1883,  had  resolved  with  reference  to  the  claim  presented  by  said 
heirs  upon  March  31  of  said  year,  to  approve  the  opinion  of  representative  Manuel  F.  Sojo 
couched  in  the  following  terms: 

"That  it  being  a  matter  of  the  greatest  importance,  and  his  many  duties  not  permitting 
him  to  examine  it,  he  returned  it,  indicating  that  he  thought  it  would  be  well  to  have  the 
advice  of  a  lawyer." 

The  president  of  the  council  in  said  communication  also  announced  that  the  body  had 
postponed  until  another  session  the  choice  of  the  la^vyer  to  be  consulted. 

Under  letters  D  and  E  two  plain  copies  of  the  two  communications,  the  first  addressed 
in  July,  1895,  by  Carlos  Piton  in  his  own  right,  and  Santiago  Carias  as  the  representative 
of  Amelia  and  Isabel  Piton  to  the  municipal  council  of  the  department  of  Vargas,  in 
which  they  requested  that  order  be  given  that  a  liquidation  might  be  made  sho\\nng  the 
indebtedness  of  said  council  to  the  heirs  of  Augusto  Lemoine  on  account  of  the  iron  pipe 
line  at  La  Guaira,  in  accordance  with  the  contract  in  the  premises  which  appeared  in  evi. 
dence  in  said  record,  and  they  demanded  that  a  certified  copj'  be  issued  to  them  of  such 
liquidation. 

The  second  communication,  dated  at  Caracas  in  September,  1896,  is  written  by  the 
same  petitioners  and  was  addressed  to  the  president  of  the  State  of  Miranda,  of  which 
State  the  city  of  La  Guaira  then  formed  a  part,  asking  said  oflBcial  that  he  examine  the 
documents  which  the  demand  mentioned  and  that  he  might  signify  that  he  considered  it 
just,  and  that  he  might  fix  upon  a  fortnightly  payment  for  the  gradual  extinguishment 
of  the  debt.  It  is  not  proved  that  these  two  demands  have  reached  their  destination, 
and  that  con.scquently  any  determination  with  respect  to  them  was  reached. 

From  the  facts  stated,  it  appears  that  an  agreement  duly  recorded  existed  by  which 
the  National  Government  through  its  official,  the  minister  of  the  interior  and  justice,  acknowl- 
edged an  indebtedness  in  favor  of  Messrs.  A.  Lemoine  &  Co.  of  $66,682.66,  as  capital,  inter- 
est, and  damages,  and  injuries  in  January,  1868,  ordering  the  gradual  extinction  of  this 
debt  by  means  of  the  receipts  of  the  rents  of  the  market  and  pure  water  of  the  eity  of 
La  Guaira;  that  this  agreement  was  performed  for  the  space  of  three  years  and  ten  months, 
Messrs.  A.  Lemoine  &  Co.  receiving  from  the  municipal  rents  of  the  district  of  Vargas 
various  sums  from  said  rents,  which  extinguished  in  part  the  balance  owed  upon  the 
capital,  and  that  portion  owed  for  interest  increased,  whereby,  by  November  1,  1871, 
the  general  balance  ol  tlie  running  account  in  favor  of  A.  Lemoine  &  Co.  amounted  to 
§64,678.66;  that  from  this  last  date  it  aocs  not  appear  that  there  has  ever  been  any  action 
taken  by  the  owner  of  the  debt  directly,  nor  by  their  legitimate  successors  in  interest, 
before  the  competent  tribunals  or  officials  of  the  country,  demanding  the  fulfillment  of  the 


464  APPENDIX. 

agreement  made  \vi(h  tlio  municipal  corporation  of  La  Guaira.  It  is  not  possible  to  leave 
out  of  consideration  this  notable  circumstance  which  as  a  consequence  has  caused  the  default 
in  payment  of  a  debt,  recognized  by  a  public  instnmient,  for  the  extingiiishment  of  which 
the  party  del>tor  had  set  aside  certain  receipts  of  the  municipal  revenues,  thus  constituting 
a  pledge  which  in  law  establishes  a  legal  right  in  favor  of  the  creditor. 

It  is  a  notorious  fact  that  the  district  of  Vainas  has  since  the  year  1871  passed  through  a 
series  of  political  and  ectmomic  changes  which  have  radically  altered  its  organization  and 
greatly  decreased  for  various  rea.sons  the  receipts  of  the  municipal  revenues. 

The  liabilitv  which  might  attach  to  the  National  Government  to-daj'for  a  debt  which  was 
originally  contracted  by  the  municipal  council  of  the  di.strict  of  Vargas,  of  the  former  pro- 
vince of  Caracas,  and  which  debt  should  be  paid  by  these  very  nnmicipal  revenues  which  .-aid 
corporation  administered,  can  not  be  founded  legally  except  in  the  ultimate  territorial  dis- 
tribution .sanctioned  by  the  constitution  of  1901  whereby  the  States  obligated  themselves  to 
cede  to  the  nation,  among  other  cities,  that  of  La  Guaira. 

Upon  the  date  of  this  session  the  debt  due  the  successors  in  interest  of  A.  Lemoine  haa  for 
a  great  many  years  remained  without  action,  without  their  having  been  presented  before  this 
commission  any  suiRcicnt  reason  or  motive  to  show  that  that  situation  was  not  owing  to  the 
neglect  of  the  creditor  and  bis  legitimate  successors  in  interest.  The  reason  upon  which  all 
legislations  base  the  right  of  the  debtor  to  invoke  prescription  as  a  means  of  extinguishing 
an  ot)ligation  is  the  abandonment  in  which  the  creditor  has  for  a  number  of  years  left  the 
exerci.se  of  his  right,  the  legal  presumption  of  payment  arising  therefrom.  Prescription  has 
not  been  invoked  before  this  commission  in  the  present  case  by  the  Government  of  Vene- 
zuela, wherefore  it  can  not  of  its  own  motion  take  it  into  consideration,  in  conformitj-  with 
the  principles  wliich  govern,  but  there  is  no  right  for  the  allowance  of  interest  upon  the 
amount  of  the  debt;  and  taking  moreover  into  consideration  that  the  amount  shown  tobe 
due  by  the  liquidation  of  November  1, 1871,  includes  an  item  of  $7,500  for  damages,  and  at 
the  same  time  another  amount  for  interest  up  to  that  date  upon  the  capital  at  6  per  cent, 
which  amounts  to  the  sum  of  $25,234.62;  and  that  in  all  equity  this  double  indemnity  should 
not  be  allowed  for  interest  and  for  damages,  there  should  be  deducted  from  the  total  amount 
of  said  lic|uidation  the  sum  of  $7,5(X),  and  the  balance  in  favor  of  the  successors  in  interest  of 
A.  Lemoine  sliould  be  allowed,  say,  the  sum  of  228,714. (M  bolivars,  without  interest. 


SuMMAiiY  OK  Claims  Adjudicated  by  the  Commissioners  at  Caracas  in  1903. 

Number  of  claims  submitted 75 

Number  of  claims  witlulra\vn 1 

Number  of  claims  in  which  awards  were  given 37 

Number  of  claims  dismissed  for  want  of  jurisdiction 2 

Number  of  claims  disallowed 27 

Number  of  claims  referred  to  umpire 8 

—  75 
Bolivars. 

Amount  of  claims  presented (Jl,  334,  352.  45 

Bolivars. 

Amount  of  claims  withdrawn 336, 000.  00 

Amount  of  claims  dismi.s.sed  for  want  of  jurisdiction 22,  31 1. 00 

Amount  of  awards  made 1,  437,  021.  01 

Amounts  of  claims  disallowed 9, 068,  908.  08 

Amount    of    reduction    of   claims    in    which    awards    were 

made 7,482,064.86 

Amount  of  claims  referred  to  umpire 42,  988, 047.  50 

61,334,352.45 


OPINIONS    OF    COMMISSION    RENDERED    IN    CARACAS.  465 

Claims  Referred  to  the  Umimue  lnuer  the  French  Protocol  oi-  1002. 

Bolivars. 

1.  Fieri  Dominique  &  Co 4,  010,  -100.  00 

2.  Compañía  General  del  Orinoco 7,  OUi,  Oi),S.  (52 

3.  Compañía  de  Betunes  del  Orinoco 17(),  OSO.  10 

4.  Massiani  Sucesores ()92,  740.  48 

5.  Maninat,  Pedro,  y  Hermana.s 2,  (KK),  (KX).  00 

6.  Compañía  francesa  de  ferrocarriles  venezolanos 18,  4S;i,  0(X).  00 

7.  Jules  Brun ÍOO,  000.  00 

8.  Fabiani,  Antonio 9,  509,  728.  30 

Total. 42,  988,  047.  50 

On  these  eight  claims  the  French  commissioner  favored  judgments  for  36,868,541.8& 
bolivars,  while  the  Venezuelan  commissioner  rejected  all  except  180,000  bolivars. 

S.  Doc.  533,  59-1 30 


INDEX 


Abandomnciit.     {See  Contracts.)  Page. 

Agents: 

Of  a  government,  acts  of,  must  1)0  considered  as  regular  and  proper  until  the 

contrary  is  clearly  shown 31 

Presumption  in  favor  of  regularity  and  propriety  of  acts  of,  as  necessary  to  the 

public  interests 31 

Appendix: 

Opinions  of  Commission  rendered  at  Caracas 454 

Attorney: 

Appearance  of,  cures  irregularities  in  proceedings 244 

Awards  {see  Plumley,  Umpire): 

Can  not  be  increased  because  of  reduction  in  market  value  of  the  securities  set 

aside  under  the  protocol  for  payment  of  such  claims 5 

Text  of,  in  Fabiani  case,  of  Swiss  Arbitrator  under  convention  of  1891 147 

Text  of,  in  Venezuelan-Colombian  boundary  dispute 268 

Summary  of,  by  umpire 453 

Battistini  case 459 

Brun  case: 

Opinion  of  Venezuelan  Commissioner 6 

Opinion  of  French  Commissioner 9 

Additional  opinion  of  Venezuelan  Commissioner 13 

Additional  opinion  of  French  Commissioner 20 

Opinion  of  Umpire 21 

Burden  of  proof.     {See  Evidence.) 

Citizenship  {see  Nationality): 

Laws  of  Venezuela  concerning,  not  peculiar 212 

Of  widow  of  French  citizen 211 

Of  children  of  French  citizen  born  and  domiciled  in  Venezuela 212 

Claimant  {see  Claims;  Evidence): 

If  rightfully  in  a  case,  however  informally  present,  case  should  be  decided  on  the 

merits,  the  decision  to  be  fully  binding  upon  all  parties 5 

Burden  of  proof  rests  upon,  to  establish  his  nationality 44 

Nationality  of,  at  inception  of  claim  alone  to  be  considered 45 

Claims  {see  Claimant): 

Changed  from  individual  to  national  character  upon  intervention  of  claimant's 

government 82 

Claims,  schedule  of: 

Brun  case 5 

Fricrdich  &  Co.  case 31 

Maninat  case 44 

Fabiani  case 81 

Dominique  &  Co.  case 185 

Leduc,  St.  Ives,  Fischer  &  Co.  case 454 

Rogé  case 454 

467 


468  INDEX. 

Claims,  schedule  of — Continued.  Page. 

Decauvilie  case -i-^G 

Battistini  ca.se 459 

Piton  ca.se 462 

French  Company  of  Venezuelan  Railroad.s 367 

Ma-ssiani,  heirs  of 21 1 

Orinoco,  Company  General  of.  casi' 244 

Commission: 

Personnel 4 

Company  Cieneral  of  the  Orinoco.     {See  Orinoco,  Company  General  of.) 

C(<nflict  of  laws; 

In  ca.se  of  disagreement  as  to  nationality,  place  of  tloinicile  shall  |)revail 4Ô 

Contracts: 

Being  mutual  and  reciprocal,  neither  party  can  abandon 245 

What  constitutes  breach  of,  by  government 245 

Abandonment  or  rescission  without  consent  of  other  party  thereto 368 

Commission  powerless  to  decree  abandonment   by  either  party  to  mutual  or 

reciprocal  contract 368 

Damages: 

Government  responsilile  for  interference  by  chief  of  custom-house  with  benefi- 
cial use  of  concession 185 

Government  not  responsible  for  indirect 186 

Through  havoe  of  war,  respondent  government  not  liable  for 369 

Measure  of,  in  a  case  where  claimant  is  a  widowed  mother  and  the  claim  is  for 
unlawful  killing  of  her  son,  is  the  amount  necessary  to  meet  pecuniary  lo.sses 

sustained  when  exemplary  damages  can  not  be  demanded 5 

Distribution  of,  rests  with  claimant  government 45 

Commission  can  not  make  order  which  would  cause  damages  to  accrue  and 

then  give  award  therefor 368 

Decauvilie  case 4.56 

Domicile.     {See  Citizenship.) 

Domini(|ue  &  Co.  case: 

Opinion  of  Venezuelan  Conmiissioner 186 

Opinion  of  French  Commissioner 193 

Additional  opinion  of  Venezuelan  Commissioner 195 

Additional  opinion  of  French  Commissioner 198 

Opinion  of  Umpire 201 

Erroi-s  or  irregularities.     {See  Rescission,  suit  for:  Rogatory  Commissions:  Federal 
court.) 

Evidence  {see  Presumptions): 

Record  proof  not  essential  if  there  be  other  proof  that  is  convineing 44 

Claimant  must  prove  nationality 44 

It  is  upon  th(<  claimant  to  fully  establish  unlawfulness  of  government  acts  com- 

|)laincd  of 31 

Fabiani  ea.se: 

Opinion  of  Venezuelan  Commissioner 81 

Ojjinion  of  French  Conunissioner 8.3 

Addit  ional  opinion  of  Venezuelan  Commissioner 97 

Additional  opinion  of  French  Commissioner 103 

Opinion  of  Umpire 110 

Exhibit:  Award  of  Swiss  Ari)itrat()r  under  conv(>ntion  of  1891 147 

I'^alsc  ¡m|)ris<>iim(Mil  as  ground  oi  indcnmity 18(> 

Federal  court,  error  in  act  ion  of,  cured 215 


INDEX.  469 

I  aRC. 

French  Company  of  Venezuelan  Railroads 367 

Opinion  of  Venezuelan  Coinniissioner 369 

Opinion  of  Freneli  Coniniissionei- 405 

Additional  opinion  of  Venezuelan  Commissioner 40D 

Additional  opinion  of  Freneli  Commissioner 425 

Opinion  of  Umpire 428 

Frierdich  &  Co.  case: 

Opinion  of  Venezuelan  Commissioner 32 

Opinion  of  French  Commissioner ..'. 32 

Additional  opinion  of  Venezuelan  Commissioner 33 

Additional  opinion  of  French  Commissioner 36 

Opinion  of  Umpire 37 

Government  {see  Intervention;  Liability): 

Will  only  treat  with  citizen  of  another  nation  throuf^li  his  government 144 

Government,  respondent,  not  responsible  for  loss  or  damages  through  havoc 

of  war 309 

Interpretation.     {See  Treaty.) 

Intervention: 

Should  not  be  resorted  to  in  a  case  of  conflict  of  laws  respecting  citizenship.  . .  45 
Should  not  l)e  had  if  defendant  government  conformed  to  its  own  laws  in  its 

own  ports,  said  laws  being  such  as  are  the  product  of  civilization 31 

Should  not  be  had  unless  defendant  government  committed  some  legal  wrong.  31 

Jurisdiction: 

Commission  has  none  to  rescind  contract 369 

Leduc,  St.  Ives,  Fischer  &  Co.  case 454 

Liability  : 

A  government  is  liable  for  injuries  suO'ered  by  an  alien  through  an  act  of  a  sub- 
ordinate officer,  committed  while  former  is  in  the  presence  of  a  conunanding 

general  by  order 44 

In  such  case,  if  the  government  declines  or  neglects  to  punish  the  guilty  person, 
the  actual  damages  suffered  may  be  claimed  and  an  additional  sum  for  the 

indirect  affront  to  claimant's  government 44 

A  government  is  liable  for  casualties  resulting  from  warfare  when  such  casual- 
ties could  have  been  avoided 5 

Maninat  case: 

Opinion  of  Venezuelan  Commissioner 45 

Opinion  of  French  Commissioner 50 

Additional  opinion  of  Venezuelan  Commissioner 55 

Additional  opinion  of  French  Commissioner 67 

Opinion  of  Umpire 69 

Marriage.     {See  Nationality.)  • 

Massiani,  heirs  of 211 

Opinion  of  Venezuelan  Commissioner 212 

Opinion  of  French  Commissioner 217 

Additional  opinion  of  Venezuelan  Commissioner 223 

Additional  opinion  of  French  Commissioner 233 

Opinion  of  Umpire 235 

Measure  of  damages.     {See  Damages.) 

Nationality: 

Attempts  to  change  after  date  of  inception  of  claim  not  valid  to  affect  rights. .  45 

Of  claimant  at  inception  of  claim  is  alone  to  be  considered 45 

By  birth  in  a  country  a  reasonable  rule 45 


470  INDEX. 

Nationality — Continued.  Page. 

Of  the  citizens  of  a  government  must  be  determined  by  the  countrj-  of  residence, 
inasmuch  as  governments  must  be  permitted  to  regulate  their  own  internal 

alfairs 45 

Marriage  of  a  woman  to  a  Frenchman  establishes  her  nationality  under  French 

law.  both  during  her  marriage  and  after  the  death  of  her  husband 45 

Establishment  of,  is  on  the  claimant 44 

Orinoco,  Company  General  of 244 

Opinion  of  Venezuelan  Commissioner 246 

Opinion  of  French  Commissioner 282 

Additional  opinion  of  Venezuelan  Commissioner 286 

Additional  opinion  of  French  Commissioner 314 

Opinion  of  Umpire 322 

Paúl.  José  de  Jesús,  Venezuelan  Commissioner  (see  Commission): 
Opinions — 

Brun  case 6,  13 

Frierdich  &  Co.  case 32,  33 

Maninat  case 45,  55 

Fabiani  case 83,  97 

Dominique  &  Co.  case 186,  195 

Leduc,  St.  Ives,  Fischer  &  Co.  case 454 

Rogé  case 454 

Decauville  case 456 

Battistini  case ^. 459 

Piton  case 462 

Massiani,  heirs  of,  case 212,  223  . 

Orinoco,  Company  General  of,  case 244,  286 

French  Company  of  Venezuelan  Railroads 369,  409 

Peretti,  Count  de,  French  Commissioner  {see  Commission): 
Opinions — 

Brun  case 9, 20 

Frierdich  &  Co.  case 32,  36 

Maninat  case 50,  67 

Fabiani  case 93,  103 

Dominique  &  Co.  case 193,  198 

Massiani,  heirs  of,  case 217,  233 

Orinoco,  Company  General  of,  case 282,  314 

French  Company  of  Venezuelan  Railroads  case 405,  425 

Piton  case 462 

Plumley,  Frank,  Umpire  {see  Commission): 
Opinions — 

Brun  case .•. 21 

Frierdich  &  Co.  case 37 

Maninat  case t>9 

Fabiani  case 110 

Dominique  &  Co.  case 201 

Massiani,  heirs  of,  case 235 

Orinoco,  Company  General  of,  case 322 

French  Company  of  V'cnezuelaii  Kailroads 42S 

Presumptions: 

Acts  of  governmental  agents  must  be  presumed  to  be  regular  and  proper  imlil 

the  contrary  is  dearly  shown 31 

Are  m  favor  of  regularity  and  propriety  of  acts  of  governmental  agents  as  ncce.s- 

sary  to  the  public  interests 31 


INDEX.  471 

Protocols:  Page. 

Text  of  convention  of  1902 1 

Text  of  Fabiani  protocol  of  1891 110 

Rescission  or  abandonment  {see  Contracts;  Jurisdiction): 

Rescission,  suit  for,  irregularities  in,  cured 244 

Date  of  entrj'  is  date  on-  which  issues  are  formed 245 

Res  judicata: 

Effect  of  judgment  or  award  as 82,  245 

Rogatory  commissions: 

Error  in,  cured 245 

Rules  as  to,  of  Institute  of  International  Law 258 

Rogé  case 454 

Sovereignty: 

To  maintain,  a  country  must  be  master  of  its  internal  policy 212 

Treaty: 

To  be  interpreted  in  manner  least  onerous  to  party  to  be  charged 45 

War.     {See  Damages;  Government;  Liability.) 


O 


39 


12668 


O 


